AMJUR ADVERSE SUM

3 Am. JUL 2d Adverse Possession Summary
Correlation Table
Summary'
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possess ron
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
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AMJUR ACTION GUIDEThis article discusses the adverse possession of property, with discussion of the
nature, elements, and requisites of adverse possession, persons who may acquire title by, as well as persons
against whom title may be acquired by, adverse possession, particular types of property and estates affected by
principles of adverse possession, the operation and effect of such principles, and matters of practice and proced-
ure related to the subject.
Seop.:
This article discusses the adverse possession of property, with discussion of the nature, elements, and re-
quisites of adverse possession, persons who may acquire title by, as well as persons against whom title may be
acquired by, adverse possession, particular types of property and estates affected by principles of adverse pos-
session, the operation and effect of such priqciples, and matters of practice and procedure related to the subject.
Treated Elsewhere:
Abandoned property, generally, see I Am. JUL 2d, Abandoned, Lost and Unclaimed Property
Adjoining landowners, prescriptive rights of, as to support of buildings or structures, water, snow or ice pre-
cipitating onto adjoining premises, and encroachments, see I Am. JUL 2d, Adjoining Landowners §§ 46, 121
Advancements of land by parol gift, title necessary to complete, so as to render gift irrevocable, as acquir-
able through donee's adverse possession for statutory period, see 3 Am. JUL 2d, Advancements § 17
Boundaries, establishment by acts of parties, generally, see 12 Am. JUL 2d, Boundaries §§ 83 to 92
Canals, acquisition of or perfection of title to land for, by adverse possession, see 13 Am. JUL 2d, Canals § 7
Champerty, conveyances of land held adversely as involving, see 14 Am. JUL 2d, Champerty, Maintenance,
and Barratry §§ l2to 15
Color of Title Act, issuance by Secretary of the Interior of patent upon payment for certain public lands held
in adverse possession under, see 63C Am. Jur. 2d, Public Lands § 43
Community or separate property, property acquired by adverse possession or prescription as, see 15A Am.
JUL 2d, Community Property § 26
Conversion action as maintainable against person claiming title to land based on adverse possession, see 18
Am. Jur. 2d, Conversion § 62
Cotenants, inurement of title or interest adversely acquired, to, see 20 Am. Jur. 2d, Cotenancy and Joint
Ownership §§ 77, 78
Covenants and restrictions, effect of adverse possession on, see 20 Am. Jur. 2d, Covenants, Conditions, and
Restrictions §§ 62, 95
Dedication by acquiescence in public use as distinguished from acquisition of rights by prescription, see 23
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AMJUR ADVERSE SUM Page 2
3 Am. Jur. 2d Adverse Possession Summary
Am. Jur. 2d, Dedication § 34
Devisability of property held in adverse possession by third person, generally, see 79 Am. Jur. 2d, Wills § 179
Easements: by prescription, generally, see 25 Am. Jur. 2d, Easements and Licenses §§ 45 to 73; termination
of easements by adverse possession, see 25 Am. Jur. 2d, Easements and Licenses § 119
Ejectment action as affected by holding of property adverse possession, and adverse possession as defense
to suc action, see 25 Am. Jur. 2d, Ejectment §§ II, 39
Marketability of title to property held by adverse possession, generally, see 47 Am. Jur. 2d, Judicial Sales §
262; 71 Am. Jur. 2d, Specific Performance § 124; 77 Am. Jur. 2d, Vendor and Purchaser §§ 164, 180, 181
Nations' acquisition of territory, application of law of prescription to, generally, see 45 Am. Jur. 2d, Interna-
tional Law § 34
Nuisance, prescription as defense to action for, see 58 Am. Jur. 2d, Nuisances §§ 458 et seq.
Partition as remedy where property is held adversely, generally, see 59A Am. Jur. 2d, Partition § 90
Pollution, prescriptive rights as to, see 61C Am. Jur. 2d, Pollution Control § 2076
Prescriptive rights as to particular types of property, easements, or rights of way, see 12 Am. Jur. 2d, Boats
and Boating § 30; 35A Am. Jur. 2d, Ferries § 12; 39 Am. Jur. 2d, Highways, Streets, and Bridges §§ 24 to 32, 63
to 65; 45 Am. Jur. 2d, Irrigation §§ 3,4; 50 Am. Jur. 2d, Levees and Flood Control § 15; 65 Am. Jur. 2d, Rail-
roads §§ 44, 50, 70; 59A Am. Jur. 2d, Party Walls §§ 18 to 20; 74 Am. Jur. 2d, Telecommunications § 10; 78
Am. Jur. 2d, Waters §§ 367 to 379; 79 Am. Jur. 2d, Wharves § 7
Questions of law or fact, adverse possession issues as, see 75A Am. Jur. 2d, Trial §§ 771, 785
Quiet title suit based on title arising from adverse possession, see 65 Am. Jur. 2d, Quieting Title and De-
termination of Adverse Claims § 36
Replevin as available against person holding by adverse possession as result of severance of property from
land, see 66 Am. Jur. 2d, Replevin § 16
State boundaries, detennination by prescription and acquiescence, see 72 Am. JUT. 2d, States, Territories,
and Dependencies § 29
Statute of frauds, possession attributable to purchaser's intention to hold land adversely to vendor's claim of
possession as insufficient to establish part performance for purposes of doctrine of part performance of oral
agreements within, see 73 Am. Jur. 2d, Statute of Frauds § 414
Taxes: payment by person seeking to acquire title by adverse possession to support claim of title, see 72
Am. Jur. 2d, State and Local Taxation § 1092; acquisition of jurisdiction by municipal corporation over territory
for taxing purposes by prescription, see 72 Am. Jur. 2d, State and Local Taxation § 650; valid tax title as de-
feated by adverse possession for statutory period where purchaser fails to take possession when entitled to do so,
see 72 Am. Jur. 2d, State and Local Taxation § 952; inability of person in adverse possession of land, assessed
for taxes thereon, to attack title of tax sale purchaser, see 72 Am. Jur. 2d, State and Local Taxation § 1032
Trespass, right or one in adverse possession ofland to maintain action for, see 75 Am. Jur. 2d, Trespass § 41
Water or water rights, acquisition by adverse possession or prescription, see 78 Am. Jur. 2d, Waters §§ 367
to 379
Research References:
West's Key Number Digest
West's Key Number Digest, Adverse Possession
West's Key Number Digest, Husband and Wife ~ 1 6
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AMJUR ADVERSE SUM
3 Am. Jur. 2d Adverse Possession Summary
West's Key Number Digest, Joint Tenancy 13
West's Key Number Digest, Judicial Sales 61
West's Key Number Digest, Landlord and Tenant 16
West's Key Number Digest, Life Estates
West's Key Number Digest, Mortgages 214
West's Key Number Digest, Parent and Child
West's Key Number Digest, Trusts 139.1
A.L.R. Library
A.L.R. Digest: Adverse Possession
A.L.R. Index: Adverse Possession
Trial Strategy
Acquisition of Title to Property by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261
Permissive Possession or Use of Land, 28 Am. Jur. Proof of Facts 2d 703
Mistaken Occupant's Right to Recovery for Improvements, 2 Am. Jur. Proof of Facts 2d 467
Forms
1 A Am. Jur. Legal Forms 2d, Adverse Possession
18 Am. Jur. Pleading and Practice Forms, Adverse Possession
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AMJUR ADVERSE I REF
3 Am. Jur. 2d Adverse Possession I Refs.
American Jurisprudence, Second Edition
Database updated November 20 10
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
I. In General
Topic Summary Correlation Table
Research References
West's Key Number Digest
West's Key Number Digest, Adverse Possession €;= I to 3, 13
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ I, 54
A.L.R. Index: Adverse Possession
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession §§ 51, 52
Page 4 of665
Page I
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AMJUR ADVERSE § I
3 Am. Jur. 2d Adverse Possession § I
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, lD., and Eric Surette, J.D.
I. In General
Topic Summary Correlation Table References
§ 1. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=I
Forms
Page 5 of665
Page I
Instruction to jury-Effect of adverse possession for statutory period. I BAm. Jur. Pleading and Practice
Forms, Adverse Possession § 51.
Instruction to jury-Effect of failure to assert rights for statutory term. I BAm. Jur. Pleading and Practice
Fonns, Adverse Possession § 52.
Adverse possession is recognized as a mode of acquiring title to property,[I] but it is not a favored one.[2]
The doctrine of adverse possession involves more than the mere barring of a remedy to the holder of title;[3]
it generally creates an absolute title to real property in fee simple, which is as good as title by patent from the
state or title by deed from the record owner,[4] although it does not amount to record title unless and until it is
made so by a judicial proceeding.[5] Thus, an adverse possession statute is not just a statute of limitations; it can
also be used as a method for establishing new title.[6]
Because an interest in real property generally cannot be abandoned, a fee owner can be divested of title only
through adverse possession.[7]
[FNl] Hart v. Sternberg, 205 Ark. 929, 171 S.W.2d 475 (1943); Cosgrove v. Young, 230 Kan. 705, 642
P.2d 75 (1982); Belotti v. Bickhardt, 228 N.Y. 296,127 N.E. 239 (1920).
[FN2] Cockrell v. Kelley, 428 So. 2d 622 (Ala. 1983); Striefel v. Charles-Keyt-Leaman Partnership,
1999 ME Ill, 733 A.2d 984 (Me. 1999); Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E. 239 (1920);
Francis v. Rogers, 2001 OK 111,2001 WL 1531592 (Okla. 2001); A.B. Cattle Co. v. Forgey Ranches,
Inc., 943 P.2d 1184 (Wyo. 1997).
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AMJUR ADVERSE § I
3 Am. JUL 2d Adverse Possession § I
[FN3) McDonald v. Burke, 288 S.W.2d 363 (Ky. 1955).
[FN4) § 248.
[FN5) § 255.
[FN6) Tenala, Ltd. v. Fowler, 921 P.2d 1114 (Alaska 1996).
[FN7)In re Petition of Doering, 165 VI. 603, 686 A.2d 101 (1996).
Page 6 of665
Page 2
As to abandoned property, generally, see I Am. JUL 2d, Abandoned, Lost and Unclaimed Property §§
et seq.
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AMJUR ADVERSE § 2
3 Am. Jur. 2d Adverse Possession § 2
American Jurisprudence, Second Edition
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§ 2. Definitions and nature
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=I, 13
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The doctrine of adverse possession allows the ripening of hostile possession, under proper circumstances,[l]
into title by lapse oftime.[2]
Definitions:
In some jurisdictions, the tenn used for adverse possession is "virgin title."[3]
Adverse possession has been defined as an actual and visible appropriation of property commenced and con-
tinued under a claim of right inconsistent with and hostile to the claim of another.[4] It has also been defined as
the open and notorious possession and occupation of real property under an evident claim or color of right, or, in
other words, a possession in opposition to the true title and record owner-a possession commenced in wrong
and maintained in right. [5]
Caution:
The "adverse" character of the possession is just one of the elements of adverse possession,[6] and is often re-
ferred to as "hostile" possession. [7]
[FNI] §§ 10etseq.
[FN2] Wallace v. Ayres, 228 Ark. 1007,311 S.W.2d 758 (1958); Hart v. Sternberg, 205 Ark. 929, 171
S. W.2d 475 (1943).
As to the operation and effect of adverse possession, generally, see §§ 242 et seq.
[FN3] Blankinship v. Payton, 605 So. 2d 817 (Miss. 1992).
[FN4] Fritts v. Ericson, 87 Ariz. 227, 349 P.2d 1107 (1960); Peters v. Gillund, 186 S.W.2d 1019 (Tex.
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AMJUR ADVERSE § 2 Page 2
3 Am. Jur. 2d Adverse Possession § 2
Civ. App. Galveston 1945), writ refused w.o.m., (June 13, 1945); Olwell v. Clark, 658 P.2d 585 (Utah
1982).
As to the elements of adverse possession, generally, see §§ 10 et seq.
[FN5] Martin v. Winston, 209 Ark. 464,190 S.W.2d 962 (1945).
[FN6] §§ 10 et seq.
[FN7] §§ 41 et seq.
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AMJUR ADVERSE § 3
3 Am. Jur. 2d Adverse Possession § 3
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§ 3. Statutes, generally
West's Key Number Digest, Adverse Possession C=3
Page 90f665
Page I
In some states, adverse possession may be established either under the common law or pursuant to statutory
provisions.[I] Under the common law, the prescriptive period is generally 20 years.[2] Under some statutes, the
period is shorter,[3] but there are generally additional requirements, such as a claim under color of title[4] and
payment of property taxes on the land claimed.[5]
Statutes providing for the length of time during which an adverse possession must be maintained to ripen in-
to title are not objectionable on the theory that they deprive the owner of property without due process of law.[ 6]
Observation:
There are at least two types of adverse possession statutes: the typical adverse possession statute, which focuses
on the steps an adverse possessor must take to quiet title against the true owner; and the "lapse statute" or "limita-
tions statute," which emphasizes what the true owner has done or failed to do so as to preclude him or her from
asserting or retaining title. [7]
[FNI] Doss v. Duggan, 555 So. 2d 116 (Ala. 1989); Striefel v. Charles-Keyt-Leaman Partnership, 1999
ME 111, 733 A.2d 984 (Me. 1999).
[FN2] § 13.
[FN3] § 13.
[FN4] § 123.
[FN5] § 148.
[FN6] Linton v. Heye, 69 Neb. 450, 95 N.W. 1040 (1903), atfd, 194 U.S. 628, 24 S. Ct. 856, 48 L. Ed.
1157 (1904).
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AMJUR ADVERSE § 3 Page 2
3 Am. Jur. 2d Adverse Possession § 3
As to the validity and constitutionality of statutes of limitation, generally, see 51 Am. Jur. 2d, Limita-
tion of Actions §§ 35 et seq.
[FN7] Mixon v. One Newco, Inc., 863 F.2d 846 (11th Cir. 1989) (applying Georgia law).
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AMJUR ADVERSE § 4
3 Am. Jur. 2d Adverse Possession § 4
American Jurisprudence, Second Edition
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§ 4. Construction and interpretation
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=I, 13
Page II of 665
Page I
Because it may deprive true and legal owners of their property,[I] the doctrine of adverse possession is to
be taken strictly, and the acts of one claiming title by adverse possession are to be strictly construed.[2] In other
words, public policy and the stability of society require strict compliance with the appropriate statutes by those
seeking ownership through adverse possession.[3]
Observation:
The concept of adverse possession stemmed from a time when the full use of land was encouraged, but there are
now new priorities in the application of this doctrine because we are faced with the problems of overdevelop-
ment, depletion of natural resources, and pollution of the environment.[4]
[FN I] Peters v. Smuggler-Durant Min. Corp., 930 P.2d 575 (Colo. 1997).
[FN2] Peters v. Smuggler-Durant Min. Corp., 930 P.2d 575 (Colo. 1997); Clark v. Drska, I Conn. App.
481, 473 A.2d 325 (1984); Keng v. Franklin, 267 Ga. 472, 480 S.E.2d 25 (1997); Carpenter v. Ruperta,
315 N.W.2d 782 (Iowa 1982); Hassell v. Texaco, Inc., 1962 OK 136,372 P.2d 233 (Okla. 1962).
[FN3] Meyer v. Law, 287 So. 2d 37 (Fla. 1973).
[FN4] Meyer v. Law, 287 So. 2d 37 (Fla. 1973).
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AMJUR ADVERSE § 5
3 Am. Jur. 2d Adverse Possession § 5
American Jurisprudence, Second Edition
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§ 5. Rationale-Statutes of limitation
West's Key Number Digest
West's Key Number Digest, Adverse Possession €==> I
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It has been held that adverse possession is based on the fact of running of the statute of limitations applic-
able to actions for the recovery of property, so it is primarily an application of the defense of limitations of ac-
tions.[I) However, the mere expiration of the time limited does not amount to a defense to an action to recover
the property; it is also essential that the party be in possession of the real estate for the statutory terro under cer-
tain conditions and requisites.[2)
Caution:
An adverse-possession statute creates a period of limitations on an action to quiet title that runs only against the
record owner of the land; the adverse possessor is under no duty to quiet title by judicial action, nor to vigor-
ously assert his or her right at every opportunity.[3)
Modem statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the re-
covery of property that has been in the adverse possession of another for a specified time, but also to vest the
possessor with title.[4) The intention of such statutes is not to punish one who neglects to assert rights, but to
protect those who have maintained the possession of property for the time specified by the statute under claim of
right or color oftitle.[5)
Observation:
Adverse possession statutes, like other statutes of limitation, rest on a public policy that regards litigation with
disfavor and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough
to indicate their acquiescence.[6)
The purpose of adverse possession statutes is to quiet title to property, and neither the power of the legis-
lature to do so, nor the wisdom of so doing, is open to question.[7)
Observation:
The guiding principle behind the elements of adverse possession is not to ascertain the intent or state of mind of
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AMJUR ADVERSE § 5 Page 2
3 Am. Jur. 2d Adverse Possession § 5
the adverse claimant, but rather, to provide notice to the true owner, allowing for the legal vindication of prop-
erty rights.[8]
[FN I] Sparks v. Byrd, 562 So. 2d 211 (Ala. 1990); Carnevale v. Dupee, 783 A.2d 404 (R.l. 2001).
As to the view that adverse possession is based on a presumption of abandonment, see § 6.
As to the view that adverse possession is based on a presumption of conveyance or grant, see § 7.
[FN2] §§ 10 et seq.
[FN3] Carnevale v. Dupee, 783 A.2d 404 (R.l. 2001).
[FN4] §§ 246 et seq.
[FN5] Osceola Fertilizer Co. v. Beville, 86 Fla. 479, 98 So. 354 (1923); Stolfa v. Gaines, 1929 OK 487,
140 Okla. 292, 283 P. 563 (1929).
[FN6] Snow v. Boykin, 432 So. 2d 1210 (Ala. 1983); Stolfa v. Gaines, 1929 OK 487, 140 Okla. 292,
283 P. 563 (1929); Ashton-Jenkins Co. v. Bramel, 56 Utah 587, 192 P. 375, 11 A.L.R. 752 (1920);
Hamilton v. Witner, 50 Wash. 689, 97 P. 1084 (1908).
An owner of land who, having notice of the fact that it was occupied by another who was claiming
dominion over it, nevertheless stood by during the entire statutory period and made no effort to eject the
claimant or otherwise protect his title, would not be permitted, for reasons of public policy, to maintain
an action for the recovery of his land. Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937).
[FN7] Alice State Bank v. Houston Pasture Co., 247 U.S. 240, 38 S. Ct. 496, 62 L. Ed. 1096 (1918);
Finn v. Alexander, 102 Kan. 607, 171 P. 602 (1918); Campbell v. Sigmon, 170 N.C. 348, 87 S.E. 116
(1915); Central Pac. Ry. Co. v. Tarpey, 51 Utah 107, 168 P. 554, 1 A.L.R. 1319 (1917); Chaplin v.
Sanders, 100 Wash. 2d 853, 676 P.2d 431 (1984); Calvert v. Murphy, 73 W. Va. 731, 81 S.E. 403 (1914).
[FN8] Totman v. Malloy, 431 Mass. 143,725 N.E.2d 1045 (2000).
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AMJUR ADVERSE § 6
3 Am. Jur. 2d Adverse Possession § 6
American Jurisprudence, Second Edition
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Adverse Possession
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I. In General
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§ 6. Rationale-Presumption of abandonment or acquiescence
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>I
Page 14 of 665
Page I
The establishment of title by adverse possession has been held to be based on the theory or presumption that
the owner has abandoned the property to the adverse possessor[ I] or on the acquiescence of the owner to the
hostile acts and claims of the person in possession.[2]
[FN I] Downing v. Bird, 100 So. 2d 57 (Fla. 1958).
As to the view that adverse possession is based on a statute of limitations, see § 5.
As to the view that adverse possession is based on a presumption of conveyance or grant, see § 7.
[FN2] Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569
(1957); Monnot v. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm, 39
Wyo. 494, 273 P. 908, 97 A.L.R. I (1929).
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AMJUR ADVERSE § 7
3 Am. Jur. 2d Adverse Possession § 7
American Jurisprudence, Second Edition
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§ 7. Rationale-Presumption of grant or conveyance
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£=>1
A.L,R. Library
Page 15 of 665
Page I
Adverse possession between cotenants, 82 A.L.R. 2d 5 § 37 (possession without acknowledgment of coten-
ancy as ground for presumption or inference of grant).
Title by adverse possession has been held to rest on a presumed grant or conveyance,[I) or on the presump-
tion of a lost grant.[2) In other words, if it is shown that one has held an uninterrupted possession of property for
a long period of time while exercising proprietary rights, the law raises a presumption of an ancient or lost grant
oftitle.[3)
This presumption is one of policy[4) as well as convenience, and is necessary for the peace and security of
society; it is founded on the consideration that the facts are such as could not, according to the ordinary course
of human affairs, occur unless there was a transmutation of title to, or an admission of an existing title in, the
party in possession.[5) The presumption of a lost grant to property recognizes that lapse of time may cure the
failure to secure the proper muniments of title, even though the lost grant may not have been in fact executed.[6)
At the end of the appropriate statutory limitations period, the presumption that there was a grant crystallizes
into a rule of law and becomes irrebuttable.[7) Thus, if property is maintained in adverse possession for the stat-
utory term, the law presumes a conveyance,[8) and this includes a presumption of the occurrence of all matters
essential to give the conveyance effect.[9)
[FN I) Phillips v. State, ex reI. Dept. of Natural Resources and Environmental Control, 449 A.2d 250
(Del. 1982); Sterling v. Sterling, 211 Md. 493, 128 A.2d 277 (1957).
As to the view that adverse possession is based on a statute oflimitations, see § 5.
As to the view that adverse possession is based on a presumption of abandonment, see § 6.
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Page 16 of 665
AMJUR ADVERSE § 7 Page 2
3 Am. Jur. 2d Adverse Possession § 7
[FN2] People v. System Properties, Inc., 2 N.Y.2d 330, 160 N.Y.S.2d 859, 141 N.E.2d 429 (1957).
[FN3] Cahill v. Cahill, 75 Conn. 522, 54 A. 732 (1903); Townsend v. Boyd, 217 Pa. 386, 66 A. 1099
(1907); Bordages v. Stanolind Oil & Gas Co., 129 S.W.2d 786 (Tex. Civ. App. Galveston 1938), writ
dismissed, judgment correct; Bull Run Development Corp. v. Jackson, 201 Va. 95, \09 S.E.2d 400
(1959); Logan's Heirs v. Ward, 58 W. Va. 366, 52 S.E. 398 (1905).
[FN4] Stolfa v. Gaines, 1929 OK 487, 140 Okla. 292, 283 P. 563 (1929).
[FN5] U.S. v. Fullard-Leo, 331 U.S. 256, 67 S. Ct. 1287,91 L. Ed. 1474 (1947).
[FN6] U.S. v. Fullard-Leo, 331 U.S. 256, 67 S. Ct. 1287,91 L. Ed. 1474 (1947); Bordages v. Stanolind
Oil & Gas Co., 129 S.W.2d 786 (Tex. Civ. App. Galveston 1938), writ dismissed, judgment correct.
[FN7] Trustees of Schools of Tp. NO.8 v. Lilly, 373 III. 431, 26 N.E.2d 489 (1940); Lincoln Parish
School Bd. v. Ruston College, 162 So. 2d 419 (La. Ct. App. 2d Cir. 1964).
[FN8] Cooper v. Tarpley, 112 Ind. App. 1,41 N.E.2d 640 (1942); Cadwalader v. Price, III Md. 3\0,
73 A. 273 (1909); Scottish Am. Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666 (1911); StoIfa v. Gaines,
1929 OK 487,140 Okla. 292, 283 P. 563 (1929).
[FN9] Stolfa v. Gaines, 1929 OK 487,140 Okla. 292, 283 P. 563 (1929).
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AMJUR ADVERSE § 8
3 Am. Jur. 2d Adverse Possession § 8
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
I. In General
Topic Summary Correlation Table References
§ 8. Distinguishing adverse possession and prescription
West's Key Number Digest
West's Key Number Digest, Adverse Possession C= I, 13
Page 17 of 665
Page 1
The term "adverse possession" should be distinguished from the term 1teasement by prescription."[l] It is the
nature of the right acquired that marks the principal difference between title by adverse possession and a pre-
scriptive right:[2] adverse possession results in full and complete title to property,[3] but prescription relates to
incorporeal hereditaments, or rights, such as easements.[ 4] Also, in adverse possession, the claimant occupies or
"possesses" the land of the fee owner, while in prescription, the claimant makes some easement-like use of it.[5]
In some jurisdictions, however, the acquisition of title to property by adverse possession is called IIprescrip- tion. "[6]
To the extent that an analogy exists between adverse possession and prescription, the statutory rules for one
should be applied to both.[7] However, if the question involved is the kind of physical conduct requisite to gain-
ing an easement by prescription, the conduct ordinarily required for acquiring the title to real property by ad-
verse possession affords no analogy, because one does not possess or occupy an easement or any other incorpor-
eal right.[8]
While prescription is measured by use rather than by possession, the adverse use necessary to acquire a pre-
scriptive right generally must commence in the same way and be of the same general character as the adverse
possession required to give title to real estate.[9] In either prescription or adverse possession, the right is ac-
quired only by actual, continuous, uninterrupted use or possession by the claimant of the property of another, for
a prescribed tenn.[ lO] Also, in both situations, the use or possession must be inconsistent with the owner's use
and enjoyment of the property and must not be a permissive use.[II]
In some states, the period of time within which the right to property by adverse possession and the right to
an easement by prescription ripen is the same;[I2] but in other states, the period of time is different.[I3]
[FN I] Thompson v. Dypvik, 174 Cal. App. 3d 329, 220 Cal. Rptr. 46 (6th Dis!. 1985).
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Page 18 of 665
AMJUR ADVERSE § 8 Page 2
3 Am. Jur. 2d Adverse Possession § 8
[FN2] Downing v. Bird, 100 So. 2d 57 (Fla. 1958).
[FN3] § 248.
[FN4]25 Am. Jur. 2d, Easements and Licenses §§ 45 to 73.
[FN5] Newell Rod and Gun Club, Inc. v. Bauer, 409 Pa. Super. 75, 597 A.2d 667 (1991).
[FN6] Blanton v. Moody, 265 F.2d 533 (5th Cir. 1959) (applying Georgia law); Sessum v. Hemperley,
233 La. 444, 96 So. 2d 832 (1957); Agurs v. Holt, 232 La. 1026,95 So. 2d 644 (1957).
[FN7] Di Leo v. Pecksto Holding Corporation, 304 N.Y. 505, 109 N.E.2d 600 (1952).
[FN8] Di Leo v. Pecksto Holding Corporation, 304 N.Y. 505, 109 N.E.2d 600 (1952).
[FN9] Scallon v. Manhattan Ry. Co., 185 N.Y. 359, 78 N.E. 284 (1906).
[FN 1 0] Downing v. Bird, 100 So. 2d 57 (Fla. 1958).
[FN II] Downing v. Bird, 100 So. 2d 57 (Fla. 1958).
As to pennissive possession, see §§ 47 et seq.
[FNI2] Taylor v. State, 302 N.Y. 177, 96 N.E.2d 765 (1951); Pennsylvania R. Co. v. Donovan, III
Ohio St. 341, 2 Ohio L. Abs. 739, 145 N.E. 479 (1924).
[FNI3] Walker v. Coley, 264 Ala. 492, 88 So. 2d 868 (1956).
As to the duration of adverse possession, see §§ 13 et seq.
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AMJUR ADVERSE § 8
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AMJUR ADVERSE § 9
3 Am. Jur. 2d Adverse Possession § 9
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
I. In General
Topic Summary Correlation Table References
§ 9, What law governs; conflict of laws
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=2
Page 19 of 665
Page I
In an action based on adverse possession, the law as it exists at the time the adverse possession is perfected
and title passes controls, rather than the law as it exists at the beginning of the adverse occupation.[I]
Even if the law permits the acquisition of title by adverse possession of certain property from the inception
of the possession, title to the property cannot be so acquired if a statute is enacted before the expiration of the re-
quired period of adverse possession prohibiting adverse acquisition of title in that kind ofproperty.[2]
The law of the state in which real estate is located determines whether title has been acquired by adverse
possession,[3] and the acquisition of title to personalty by adverse possession is governed by the law of the state
in which the property was situated at the time the transfer took place.[4]
[FNI] Preston v. Smith, 41 Tenn. App. 222, 293 S.W.2d 51 (1955).
[FN2] Application of Stein, 256 Minn. 485, 99 N.W.2d 204 (1959) (public way).
[FN3] Gehman v. Lair, 35 N.M. 17,288 P. 604 (1930).
Restatement Second, Conflict of Laws § 227.
[FN4] Restatement Second, Conflict of Laws § 246.
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AMJUR ADVERSE II A REF
3 Am. Jur. 2d Adverse Possession II A Refs.
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Topic Summary Correlation Table
Research References
West's Key Number Digest
II. Elements and Requisites
A. In General
West's Key Number Digest, Adverse Possession €;= 13
A,L.R. Library
A.L.R. Digest: Adverse Possession §§ 17,48
A.L.R. Index: Adverse Possession
Trial Strategy
Acquisition of Title to Property by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession § 68
Page 20 of 665
Page I
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AMJUR ADVERSE II A REF
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weitiaw
AMJUR ADVERSE § 10
3 Am. Jur. 2d Adverse Possession § 10
American Jurisprudence, Second Edition
Database updated November 20 10
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
n. Elements and Requisites
A. In General
Topic Summary Correlation Table References
§ 10. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 7 et seq.
Trial Strategy
Acquisition of Title to Property by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261.
Forms
Page 21 of 665
Page I
Instruction to of adverse possession. IB Am. Jur. Pleading and Practice Forms, Adverse
Possession § 68.
As a rule, there must be a remedy available to the owner of an interest in property before adverse possession
begins to run.[I] To bar the record owner of property ITom recovering it from an occupant in adverse possession
and claiming ownership througb operation of the statute of limitations, the possession must have been for the
whole tenn prescribed by the statute, actual, open, visible, notorious, continuous, and hostile.[2] It is also gener-
ally necessary that the possession have been held under a claim of right or title.[3] Under some statutes, color of
title[4] or payment oftaxes[5] is also necessary.
When these elements coincide, title by adverse possession is acquired.[6]
Reminder:
If anyone of the elements necessary to constitute adverse possession is absent, title by adverse possession can-
not be gained. [7] The existence of each element must be simultaneous and continuous for the required period.[8]
CUMULATIVE SUPPLEMENT
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Page 22 of 665
AMJUR ADVERSE § 10 Page 2
3 Am. Jur. 2d Adverse Possession § 10
Cases:
Coupled with actual and visible possession and use, the adverse claim and possession satisfy the statutory
requirements for adverse possession and cannot be defeated by the claimant's lack of knowledge of the defi-
ciency of his record title or by the absence of a realization that there could be other claimants for the land. My-
ers v. Wright, 224 S.W.3d 466 (Tex. App. Dallas 2007).
lEND OF SUPPLEMENTI
[FNI) § 15.
[FN2) Chevy Chase Land Co. of Montgomery County, Md. v. U.S., 37 Fed. Cl. 545 (1997), judgment
affd, 230 F.3d 1375 (Fed. Cir. 1999), amended, (Mar. 27, 2000) and reh'g and reh'g en banc denied,
(Apr. 6, 2000) and cert. denied, 531 U.S. 957, 121 S. CI. 380, 148 L. Ed. 2d 293 (2000) (applying
Maryland law); Stump v. Whibco, 314 N.J. Super. 560, 715 A.2d 1006 (App. Div. 1998); Ramsey v.
O'Neal, 2001 WL 996051 (Ala. 2001); Salazar v. Terry, 911 P.2d 1086 (Colo. 1996); Smith v. Tippett,
569 A.2d 1186 (D.C. 1990); DeChambeau v. Estate of Smith, 132 Idaho 568, 976 P.2d 922 (1999);
Marksbury v. State, 322 N. W.2d 281 (Iowa 1982); Appalachian Regional Healthcare, Inc. v. Royal
Crown Bottling Co., Inc., 824 S.W.2d 878 (Ky. 1992); Eaton v. Town of Wells, 2000 ME 176, 760
A.2d 232 (Me. 2000); Tottnan v. Malloy, 431 Mass. 143, 725 N.E.2d 1045 (2000); Blankinship v.
Payton, 605 So. 2d 817 (Miss. 1992); Tester v. Tester, 300 Monl. 5, 3 P.3d 109 (2000); Wanha v. Long,
255 Neb. 849, 587 N.W.2d 531 (1998); Riverwood Commercial Properties, Inc. v. Cole, 138 N.H. 333,
639 A.2d 714 (1994); Ray v. Beacon Hudson Mountain Corp., 88 N.Y.2d 154,643 N.Y.S.2d 939, 666
N.E.2d 532 (1996); Grace v. Koch, 81 Ohio SI. 3d 577, 692 N.E.2d 1009 (1998); Francis v. Rogers,
2001 OK 111,2001 WL 1531592 (Okla. 2001); Hollinan v. Freeman Land and Timber, LLC., 329 Or.
554,994 P.2d 106 (1999); Myers v. Beam, 551 Pa. 670, 713 A.2d 61 (1998); DelSesto v. Lewis, 754
A.2d 91 (R.l. 2000); Horry County v. Laychur, 315 S.C. 364, 434 S.E.2d 259 (1993); Lewis v. Aslesen,
2001 SD 131,635 N.W.2d 744 (S.D. 2001); Ransom v. Bebernitz, 782 A.2d 1155 (VI. 2001); Young
Kee Kim v. Douval Corp., 259 Va. 752, 529 S.E.2d 92 (2000); State v. Lee, 128 Wash. 2d 151, 904
P.2d 1143 (1995); Miller v. Lambert, 196 W. Va. 24, 467 S.E.2d 165 (1995); Kimball v. Turner, 993
P.2d 303 (Wyo. 1999).
As to details relating to each of these elements, see §§ 16 et seq.
[FN3) § 116.
[FN4) § 123.
[FN5)§151.
[FN6) Meyers v. Canutt, 242 Iowa 692, 46 N.W.2d 72, 24 A.L.R.2d I (1951); Marion Inv. Co. v. Vir-
ginia Lincoln Furniture Corp., 171 Va, 170, 198 S.E. 508,118 A.L.R. 939 (1938).
[FN7) Castle Associates v. Schwartz, 63 A.D.2d 481, 407 N.Y.S.2d 717 (2d Dep't 1978); Elliott v.
West, 665 S.W.2d 683 (Mo. Ct. App. S.D. 1984).
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Page 23 of 665
AMJURADVERSE § 10 Page 3
3 Am. Jur. 2d Adverse Possession § 10
[FN8] Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998).
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AMJUR ADVERSE § 11
3 Am. Jur. 2d Adverse Possession § 11
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
11. Elements and Requisites
A. In General
Topic Summary Correlation Table References
§ II. Necessity of title
West's Key Num ber Digest
West's Key Number Digest, Adverse Possession €;:::;;;>13
Page 24 of 665
Page 1
One claiming title by adverse possession always claims in derogation of the right of the true owner, admit·
ting that the legal title is in another.[l] Thus, as a general rule, one who seeks to set up an adverse possession
need not have a good title, or in fact any title, except a possession adverse and hostile to that of the true owner
under a pretense or claim of title.[2] The adverse claimant rests the claim, not on title, but on holding adversely
to the true owner for the term prescribed by the statute of limitations.[3]
Reminder:
Adverse possession also may exist with color of title; and under some statutes, color of title is essential to the
acquisition of title by adverse possession.[4]
[FN I] Mercer v. Wayman, 9 Ill. 2d 44 I, 137 N.E.2d 815 (1956).
[FN2] Casner v. Common School Dis!. No.7, Sumner County, 175 Kan. 551, 265 P.2d 1027 (1954).
As to a claim of right, see § § I 16 et seq.
[FN3] Mercer v. Wayman, 9 III. 2d 441,137 N.E.2d 815 (1956).
As to duration of adverse possession, see §§ 13 et seq.
[FN4] § 123.
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AMJUR ADVERSE § 11
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AMJUR ADVERSE § II Page 2
3 Am. Jur. 2d Adverse Possession § II
END OF DOCUMENT
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AMJUR ADVERSE § 12
3 Am. JUT. 2d Adverse Possession § 12
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
ll. Elements and Requisites
A. In General
Topic Summary Correlation Table References
§ 12. Personal property
West's Key Number Digest
West's Key Number Digest, Adverse Possession €;=13
Page 26 of 665
Page I
While a discussion of adverse possession ordinarily centers on real property, the same principle has been ap-
plied to the acquisition of title to personal property.[l] Thus, if a person has the peaceable, undisturbed, open
possession of personal property, with an assertion of ownership, for the term that would bar an action for its re-
covery by the true owner, the claimant has acquired title superior to that of the true owner, whose neglect to as-
sett legal rights results in a loss oftitle.[2]
For a person to acquire title to personal property by adverse possession, the possession must be under a
claim of right and involve open, public, and notorious llse,[3] and must be actual, hostile, continuous, and ex-
clusive for the applicable limitation term.[4]
Some statutes provide that a person who possesses a movable thing in good faith and by a just title as owner
during a cettain period without interruption shall thereby acquire the ownership of it unless the thing had been
stolen or IOSI.[5]
CUMULATIVE SUPPLEMENT
Cases:
To acquire title by adverse possession, the party claiming title under the common-law doctrine must show
exclusive possession and open, notorious, continuous, and adverse use for a period of 21 years. Evanich v.
Bridge, 170 Ohio App. 3d 653, 2007-0hio-1349, 868 N.E.2d 747 (9th Dist. Lorain County 2007), appeal al-
lowed, 114 Ohio St. 3d 1507, 2007-0hio-4285, 872 N.E.2d 950 (2007).
lEND OF SUPPLEMENTI
[FNl] Henderson v. First Nat. Bank of Dewitt, 254 Ark. 427, 494 S.W.2d 452 (1973) (stock certific-
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Page 27 of 665
AMJUR ADVERSE § 12 Page 2
3 Am. Jur. 2d Adverse Possession § 12
ates); Isham v. Cudlip. 33 Ill. App. 2d 254.179 N.E.2d 25 (2d Dis!. 1962).
[FN2) State ex reI. Brooks v. Overland Beverage Co., 69 Idaho 126, 203 P.2d 1009 (1949) (shares of
stock); Lightfoot v. Davis, 198 N.Y. 261, 91 N.E. 582 (1910); Priester v. Milleman, 161 Pa. Super. 507,
55 A.2d 540 (1947).
[FN3) Isham v. Cudlip, 33 Ill. App. 2d 254,179 N.E.2d 25 (2d Dis!. 1962).
[FN4) Bufano v. City and County of San Francisco, 233 Cal. App. 2d 61, 43 Cal. Rptr. 223 (1st Dis!.
1965) (city claiming art objects by adverse possession must establish hostile holding against artist);
Isham v. Cud1ip, 33 Ill. App. 2d 254, 179 N.E.2d 25 (2d Dis!. 1962).
[FN5) Succession of Quaglino, 232 La. 870,95 So. 2d 481 (1957) (three years).
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AMJUR ADVERSE § 12
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AMJUR ADVERSE II B REF
3 Am. Jur. 2d Adverse Possession II B Refs.
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Topic Summary Correlation Table
Research References
West's Key Number Digest
II. Elements and Reqalsites
B. Duration of Possession
West's Key Number Digest, Adverse Possession C=40, 42, 44
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 39 to 42
A.L.R. Index: Adverse Possession
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession §§ 43, 47, 48
Page 28 of 665
Page I
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AMJUR ADVERSE II B REF
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AMJUR ADVERSE § 13
3 Am. Jur. 2d Adverse Possession § 13
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
B. Duration of Possession
Topic Summary Correlation Table References
§ 13. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=40, 44
Forms
Page 29 of 665
Page I
Complaint, petition, or declaration-Allegation-Possession for statutory period. IB Am. Jur. Pleading and
Practice Forms, Adverse Possession § 43.
Instruction to jury-Compliance with statute of limitations. IB Am. Jur. Pleading and Practice Forms, Ad-
verse Possession § 47.
Instruction to jury-Period of adverse possession. I BAm. Jur. Pleading and Practice Forms, Adverse Pos-
session § 48.
Under the common law, the period for adverse possession was twenty years,[I] and some states still use this
as the period for adverse possession.[2] However, the length of time during which an adverse possession must
be maintained not only varies in the different jurisdictions, but is frequently changed in the same jurisdiction, so
that it is necessary to examine the local1aws in all adverse possession cases.[3]
In some states, the period of possession required to establish title by adverse possession varies according to
specified circumstances and requirements.[4] For example, the duration of possession required to establish title
by adverse possession is less in some jurisdictions if the possession is under color of title than if it is without
color oftitle.[5]
Whatever the period required in the particular jurisdiction and under the particular circumstances, title by
adverse possession cannot be acquired unless it is shown that the adverse possession continued for that period.[6 ]
A period of constructive possession under one statute of limitations cannot be tacked to a period of actual
possession under another statute of limitations to make out the required time of possession to establish title by
adverse possession.[7]
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Page 30 of 665
AMJUR ADVERSE § 13 Page 2
3 Am. Jur. 2d Adverse Possession § 13
CUMULATIVE SUPPLEMENT
Cases:
Adverse possession claim by heirs of alleged owner of real property by adverse possession, who did not
produce an instrument of title and relied upon claim of right by prescriptive title, was governed by statute with
20 year prescription period, rather than by statute which allowed for a prescription period of seven years when
color of title was shown. Walker v. Sapelo Island Heritage Authority, 285 Ga. 194,674 S.E.2d 925 (2009).
lEND OF SUPPLEMENTI
[FN I] Sparks v. Byrd, 562 So. 2d 211 (Ala. 1990).
[FN2] Chevy Chase Land Co. of Montgomery County, Md. v. U.S., 37 Fed. Cl. 545 (1997), judgment
affd, 230 F.3d 1375 (Fed. Cir. 1999), amended, (Mar. 27, 2000) and reh'g and reh'g en banc denied,
(Apr. 6, 2000) and cert. denied, 531 U.S. 957, 121 S. Ct. 380, 148 L. Ed. 2d 293 (2000) (applying
Maryland law); McGeechan v. Sherwood, 2000 ME 188, 760 A.2d 1068 (Me. 2000); City of Deadwood
v. Summit, Inc., 2000 SO 29,607 N.W.2d 22 (S.D. 2000).
[FN3] B. Fernandez & Bros. v. Ayllon, 266 U.S. 144, 45 S. Ct. 52, 69 L. Ed. 209 (1924); J & M Land
Co. v. First Union Nat. Bank, 166 N.J. 493, 766 A.2d 1110 (2001) (thirty or sixty years for woodland or
uncultivated tracts); Fairbanks North Star Borough v. Lakeview Enterprises, Inc., 897 P.2d 47 (Alaska
1995) (ten years); Gordon v. Simmons, 136 Ky. 273, 124 S.W. 306 (1910); Moore v. Hoffman, 327 Mo.
852,39 S.W.2d 339, 75 A.L.R. 135 (1931); DelSesto v. Lewis, 754 A.2d 91 (R.!. 2000) (ten years);
Chittenden v. Waterbury Center Community Church, Inc., 168 Vt. 478, 726 A.2d 20 (1998) (fifteen
years); ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 774 P.2d 6 (1989) (ten years); Hovendick v.
Ruby, 10 P.3d 1119 (Wyo. 2000) (ten years).
[FN4] Braue v. Fleck, 23 N.J. 1, 127 A.2d 1 (1956); Sashinger v. Wynn, 571 So. 2d 1065 (Ala. 1990)
(10 years with payment of taxes and color of title; 20 without those factors); National Property Owners
Ass'n v. Hogue, 229 Ark. 743, 318 S.W.2d 151 (1958); Tilbury v. Osmundson, 143 Colo. 12,352 P.2d
102 (1960); Baudin v. Charrier, 137 So. 2d 440 (La. Ct. App. 3d Cir. 1962); Johnson v. McLamb, 247
N.C. 534, 101 S.E.2d 311 (1958); Sioux City Boat Club v. Mulhall, 79 S.D. 668, 117 N.W.2d 92 (1962)
; Greenway Parks Home Owners Ass'n v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235 (1958); Marky
Inv., Inc. v. Arnezeder, 15 Wis.2d 74, 112N.W.2d211 (1961).
[FN5] § 124.
[FN6] Lawse v. Glaha, 253 Iowa 1040, 114 NW.2d 900 (1962); Berglund v. Sisler, 210 Neb. 258, 313
N.W.2d 679 (1981); In re Harlem River Drive, City of New York, 307 N.Y. 447, 121 N.E.2d 414
(1954); Collins v. Smith, 1962 OK 128,372 P.2d 878 (Okla. 1962).
[FN7] Vider v. Zavislan, 146 Colo. 519,362 P.2d 163 (1961).
As to constructive possession, generally, see § 27.
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AMJUR ADVERSE § 13 Page 3
3 Am. Jur. 2d Adverse Possession § 13
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AMJUR ADVERSE § 14
3 Am. Jur. 2d Adverse Possession § 14
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
11. Elements and Requisites
B. Duration of Possession
Topic Summary Correlation Table References
§ 14, Personal property
West's Key Number Digest
West's Key Number Digest, Adverse Possession <C=40, 44
Page 32 of 665
Page I
Ordinarily, the period of adverse holding required for obtaining title to personal property by adverse posses-
sion is the same as the statutory period that bars an action for the recovery of personal property by the real own-
er.[ I] However, some statutes specifically prescribe a certain time of adverse holding to acquire personal prop-
erty by adverse possession.[2]
[FNI] Lightfoot v. Davis, 198 N.Y. 261, 91 N.E. 582 (1910) (six-year period).
[FN2] Henderson v. First Nat. Bank of Dewitt, 254 Ark. 427, 494 S.W.2d 452 (1973) (three years for
stock certificates); Succession of Quaglino, 232 La. 870, 95 So. 2d 481 (1957).
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AMJUR ADVERSE § 15
3 Am. Jur. 2d Adverse Possession § 15
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
B. Duration of Possession
Topic Summary Correlation Table References
§ 15. When the statute begins to run
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=42
Page 33 of665
Page I
The remedies of trespass or ejectment must be available to the owner of an interest before adverse posses-
sion begins to run.[l] Thus, if the adverse possessor's use of the property is perroissive at first, a statute provid-
ing the length of time during which an adverse possession must be maintained to ripen into title begins to run at
the time the possession of the claimant becomes hostile to that of the owner.[2]
Caution:
A statute providing that a statute of limitations is tolled if the defendant is out of the state for more than one year
when or after the cause of action arises does not apply to an adverse possession claim.[3]
If there is an adverse possession of land under a mistaken entry, the statutory period for acquiring title by
adverse possession runs from the date of the entry, and not from the discovery of the mistake.[4] The statute of
limitations for the recovery of real property begins to run when the cause of action accrues, and the cause of ac-
tion accrues when the owner is deprived of possession; the fact that the owner is deprived of possession under a
mistaken entry does not alter this rule.[5]
CUMULATIVE SUPPLEMENT
Cases:
Prescriptive period applicable to deed grantee's adverse possession claim began to run before landowners
discovered the alleged fraud in deed; grantee had no notice of the alleged fraud concerning the deed, and the al-
leged fraud did not prevent or deter the landowners from acting. Goodrum v. Goodrum, 283 Ga. 163, 657 S.E.2d
192 (2008).
lEND OF SUPPLEMENTI
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AMJUR ADVERSE § 15 Page 2
3 Am. Jur. 2d Adverse Possession § 15
[FNI] Gunther & Shirley Co. v. Presbytery of Los Angeles, 85 Ariz. 56, 331 P.2d 257 (1958); McDon-
ald v. Burke, 288 S.W.2d 363 (Ky. 1955); Tennis Coal Co. v. Sackett, 172 Ky. 729, 190 S.W. 130
(1916); Ennis v. Stanley, 346 Mich. 296, 78 N.W.2d 114 (1956); Zivic v. Place, 122 N.H. 808,451
A.2d 960 (1982); Brand v. Prince, 35 N.Y.2d 634, 364 N.Y.S.2d 826, 324 N.E.2d 314 (1974); Olwell v.
Clark, 658 P.2d 585 (Utab 1982).
As to trespass, generally, see 75 Am. Jur. 2d, Trespass.
As to ejecttnent, generally, see 25 Am. Jur. 2d, Ejecttnent.
As to when a statute of limitation begins to run, generally, see 51 Am. JUT. 2d, Limitation of Actions §§
147 et seq.
[FN2] § 50.
[FN3] Catawba Indian Tribe of South Carolina v. State of S.C., 978 F.2d 1334 (4th Cir. 1992) (applying
South Carolina law).
[FN4] Sorensen v. Costa, 32 Cal. 2d 453,196 P.2d 900 (1948).
[FN5] Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948).
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AMJUR ADVERSE § 15
END OF DOCUMENT
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AMJUR ADVERSE II C REF
3 Am. Jur. 2d Adverse Possession II C Refs.
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Topic Summary Correlation Table
Research References
West's Key Number Digest
II. Elements and Requisites
C. Actual Possession
West's Key Number Digest, Adverse Possession €;:= 14, 15
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 17 to 19
A.L.R. Index: Adverse Possession
Trial Strategy
Acquisition of Title by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261
Forms
Page 35 of 665
Page I
IB Am. Jur. Pleading and Practice Forms, Adverse Possession §§ 12, 24, 69, 71, 72, 93 to 95, 99 to 101,
104 to 106
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rights reserved.
AMJUR ADVERSE II C REF
END OF DOCUMENT
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AMJUR ADVERSE § 16
3 Am. Jur. 2d Adverse Possession § 16
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
I. In General
Topic Summary Correlation Table References
§ 16. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=40, 44
A. L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 § 8.
Page 36 of 665
Page I
Actual possession is an indispensable element in adverse possession.[l] However, possession alone is not a
sufficient basis for claim of title by adverse possession,[2] and the statutory requirements for adverse possession
of property are not satisfied by the assertion of the right to possession.[3]
Observation:
One purpose of the actual possession requirement is to give the true owner notice of the extent of the trespass,
because adverse possession generally does not extend beyond the land that the claimant actually occupies.[4]
[FNI] Harkins v. Fuller, 652 A.2d 90 (Me. 1995); Anderson Y. Boyd, 229 Miss. 596, 91 So. 2d 537
(1956); Bilby Y. Wire, 77 N.W.2d 882 (N.D. 1956).
As to the other elements of adverse possession, see §§ 256 et seq.
[FN2] Bettack v. Conachen, 235 Wis. 559, 294 N.W. 57 (1940).
[FN3] Rucker Y. Jackson, 180 Ala. 109,60 So. 139 (1912); Bilby Y. Wire, 77 N.W.2d 882 (N.D. 1956);
Westbrook v. Rhodes, 92 Okla. 149,218 P. 873 (1923).
[FN4] Striefel Y. Charles-Keyt-Leaman Partnership, 1999 ME III, 733 A.2d 984 (Me. 1999).
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AMJUR ADVERSE § 16 Page 2
3 Am. Jur. 2d Adverse Possession § 16
rights reserved.
AMJUR ADVERSE § 16
END OF DOCUMENT
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AMJUR ADVERSE § 17
3 Am. Jur. 2d Adverse Possession § 17
American Jurisprudence, Second Edition
Database updated November 20 10
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
1. In General
Topic Summary Correlation Table References
§ )7, Necessity
West's Key Number Digest
West's Key Number Digest, Adverse Possession <C=14
A.L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 § 7[(a)].
Page 38 of 665
Page I
Actual possession or occupancy is always involved in any claim to real property by adverse possession;[I]
there must be an actual possession of at least some portions of the property to create a title by adverse posses-
sion.[2] Thus, one claiming real property adversely must be in actual possession of the property for the claim be
effective against the owner.[3] Without such occupancy, the law assumes the possession of property to be in the
owner of the legal title. [4]
[FN I] Chaney v. State Mineral Bd., 444 So. 2d 105 (La. 1983); Wanha v. Long, 255 Neb. 849, 587
N.W.2d 531 (1998).
[FN2] Gill v. Fletcher, 74 Ohio St. 295, 78 N.E. 433 (1906); Mullis v. Winchester, 237 S.C. 487, 118
S.E.2d 61 (1961); Connaghan v. Eighty-Eight Oil Co., 750 P.2d 1321 (Wyo. 1988).
[FN3] Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882 (1946); Seaboard Air Line
Ry. Co. v. Board of Bond Trustees of Special Road and Bridge Dist. No. I of Alachua County, 91 Fla.
612, 108 So. 689, 46 A.L.R. 870 (1926); Walter v. Jones, 15 Ill. 2d 220, 154 N.E.2d 250 (1958); Mar-
engo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937); Meyers v. Canutt, 242 Iowa 692, 46
N.W.2d 72, 24 A.L.R.2d I (1951); Ramey v. Ramey, 353 S.W.2d 191 (Ky. 1962); White v. Hardisty,
220 Md. 152, 151 A.2d 764 (1959); Ables v. Webb, 186 Mo. 233, 85 S.W. 383 (1905); Meyer v. Chess-
man, 132 Mont. 187,315 P.2d 512 (1957); Frank v. Smith, 138 Neb. 382, 293 N.W. 329, 134 A.L.R.
458 (1940); Reid v. City of New York, 274 N.Y. 178, 8 N.E.2d 326 (1937); Bilby v. Wire, 77 N.W.2d
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Page 39 of 665
AMJUR ADVERSE § 17 Page 2
3 Am. Jur. 2d Adverse Possession § 17
882 (N.D. 1956); Gill v. Fletcher, 74 Ohio St. 295, 78 N.E. 433 (1906); Baxter v. Girard Trust Co., 288
Pa. 256, 135 A. 620, 49 A.L.R. 1011 (1927); Harrelson v. Reaves, 219 S.C. 394, 65 S.E.2d 478, 43
A.L.R.2d 1 (1951); Gibbs v. Lester, 41 S. W.2d 28, 80 A.L.R. 431 (Tex. Comm'n App. 1931); Slater v.
Murphy, 55 Wash. 2d 892, 339 P.2d 457 (1959).
An intestate's grandson, who was never in actual physical possession of land and who only infonned
one other heir of his claim to the property, did not have title to the surface rights under adverse posses-
sion. Lewis v. Johnson, 507 So. 2d 918 (Ala. 1987).
[FN4] § 27.
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AMJUR ADVERSE § 17
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West law
AMJUR ADVERSE § 18
3 Am. Jur. 2d Adverse Possession § 18
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
2. What Constitutes Actual Possession
a. In General
Topic Summary Correlation Table References
§ 18. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession >8:=14, 26
Forms
Page 40 of 665
Page I
Instruction to jury-Character of possession-Necessity for actual possession-Remedies of owner in ab-
sence of required possession. IB Am. JUT. Pleading and Practice Fonns, Adverse Possession § 71.
Instruction to constitutes possession. IB Am. Jur. Pleading and Practice Forms, Adverse Pos-
session §§ 99, 100.
Actual possession has been defined as use and occupation of the property,[I) or as possession in fact, ef-
fected by actual entry on, and actual occupancy of, the premises.[2) It has also been defined as effective control
over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.[3)
There is no fixed rule by which the actual possession of real property by an adverse claimant may be de-
termined in all cases,[ 4) because the determination of what constitutes possession of property for purposes of ad-
verse possession depends on the facts in each case,[5) and to a large extent on the character of the premises.[6)
There may be actual possession of real property without residence,[?) cultivation of lands,[8) enclosure of
lands,[9) optimal use of the land,[IO) personal and physical occupation of the property,[II) or erection of build-
ings.[12) However, the evidence of a claimant's actual possession must be sufficient to alert a reasonably dili-
gent owner to the adverse possessor's exercise of dominion and control.[13] Thus, an occasional or periodical
entry on property does not constitute actual possession.[14)
Observation:
The possession supporting an adverse claim must be sufficient to enable a person on the ground of a possessory
title to maintain trespass or ejecttnent against a stranger. [15)
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AMJUR ADVERSE § 18 Page 2
3 Am. Jur. 2d Adverse Possession § 18
[FN 1] Calhoun v. Woods, 246 Va. 41,431 S.E.2d 285 (1993).
[FN2] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME Ill, 733 A.2d 984 (Me. 1999); Thomas
v. Flynn, 169 Neb. 458,100 N.W.2d 37 (1959).
[FN3] Blankinship v. Payton, 605 So. 2d 817 (Miss. 1992).
[FN4] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); People's Say. Bank
v. Bufford, 90 Wash. 204,155 P. 1068 (1916).
[FN5] Bums v. Foster, 348 Mich. 8, 81 N.W.2d 386 (1957); Feinstein v. McGuire, 297 S.W.2d 513
(Mo. 1957); Cox v. Kelley, 1956 OK 72, 295 P.2d 1061 (Okla. 1956).
[FN6] § 21.
[FN7] § 31.
[FN8] § 32.
[FN9] § 40.
[FN10] N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780 (1999), cert. denied, 528 U.S.
1079,120 S. Ct. 798, 145 L. Ed. 2d 672 (2000).
[FNll] Shilts v. Young, 567 P.2d 769 (Alaska 1977); Monroe v. Rawlings, 331 Mich. 49, 49 N.W.2d
55 (1951); Arney v. Hall, 123 vt. 62, 181 A.2d 69 (1962).
[FNI2] Manville v. Gronniger, 182 Kan. 572, 322 P.2d 789 (1958); Monroe v. Rawlings, 331 Mich. 49,
49 N. W.2d 55 (1951); Feinstein v. McGuire, 297 S. W.2d 513 (Mo. 1957).
[FN 13] Vezey v. Green, 35 P.3d 14 (Alaska 2001).
[FNI4] Cockrell v. Kelley, 428 So. 2d 622 (Ala. 1983); McCarty v. Sheets, 423 N.E.2d 297 (Ind. 1981);
Carpenter v. Ruperta, 315 N.W.2d 782 (Iowa 1982); Ennis v. Stanley, 346 Mich. 296, 78 N.W.2d 114
(1956); Norman v. Smedley, 1961 OK 143, 363 P.2d 839 (Okla. 1961); Westover Volunteer Fire Dept.
v. Barker, 142 W. Va. 404, 95 S.E.2d 807 (1956).
[FNI5] § 15.
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AMJURADVERSE § 19
3 Am. Jur. 2d Adverse Possession § 19
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
2. What Constitutes Actual Possession
a. In General
Topic Summary Correlation Table References
§ 19. Intent; domination and control
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=II, 14
Page 42 of 665
Page I
Actual possession requires a present ability to control the thing possessed and an intent to exclude others
!Tom such control.[ I] The intent on the part of the claimant must be to hold the property on behalf of the
claimant,[2] and that intention must be made manifest by acts,[3] which must be done for the purpose of devel-
oping and maintaining the property claimed and not for some other purpose.[4]
Actual possession of real property by an adverse claimant consists of exercising acts of dominion over it,
making the ordinary use of it, and taking the ordinary profits it is capable of producing in its present state.[5] To
establish adverse possession or to set in operation the statute of limitations, however, the claimant need not
stand guard at all times on the border of property to oppose the entry of trespassers or hostile claimants; it is
enough if the person pleading the statute takes and maintains such possession and exercises such open dominion
as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of a similar
nature and condition.[6]
CUMULATIVE SUPPLEMENT
Cases:
The intent to take the property of another is not necessary for a claim of adverse possession; the intent to oc-
cupy and treat property as one's own is all that is required. Evanich v. Bridge, 119 Ohio SI. 3d 260,
2008-0hio-3820, 893 N.E.2d 481 (2008).
For purposes of adverse possession, a "claim of right" means that the entry of the claimant must be with the
intent to claim the land as his own, to hold it for himself and such must continue to be the nature of his posses-
sion. Myers v. Wright, 224 S. W.3d 466 (Tex. App. Dallas 2007).
lEND OF SUPPLEMENT I
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AMJUR ADVERSE § 19 Page 2
3 Am. Jur. 2d Adverse Possession § 19
[FN1] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME Ill, 733 A.2d 984 (Me. 1999); Hamburg
Realty Co. v. Walker, 327 S.W.2d 155 (Mo. 1959).
[FN2] Goldman v. Quadrato, 142 Conn. 398, 114 A.2d 687, 55 A.L.R.2d 549 (1955); Tennis Coal Co.
v. Sackett, 172 Ky. 729, 190 S.W. 130 (1916); Petsch v. Widger, 214 Neb. 390, 335 N.W.2d 254 (1983)
; Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932).
[FN3] Striefe1 v. Charles-Keyt-Leaman Partnership, 1999 ME 111, 733 A.2d 984 (Me. 1999); Robin v.
Brown, 308 Pa. 123, 162 A. 161 (1932).
In a boundary dispute, title through adverse possession was not established, although a predecessor in
title to the claimants had platted the property and taxes on the property were paid according to the plat-
ted lot numbers, because neither the claimants nor their predecessors had performed any overt physical
acts of possession over the disputed strip of property. Cox v. Game, 373 So. 2d 364 (Fla. Dis!. C!. App.
2d Dis!. 1979).
[FN4] Greenway Parks Home Owners Ass'n v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235 (1958).
[FN5] Stark v. Akard, 1957 OK 181, 313 P.2d 790 (Okla. 1957).
[FN6] Clear Lake Amusement Corp. v. Lewis, 236 Iowa 132, 18 N.W.2d 192 (1945); Hibbard v. Robert
G. Fromkin Woolen Corp., 156 Me. 433, 165 A.2d 49 (1960); Bilby v. Wire, 77 N.W.2d 882 (N.D.
1956); Lynch v. Lynch, 236 S.c. 612,115 S.E.2d 301 (1960).
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weStiaw.
AMJUR ADVERSE § 20
3 Am. Jur. 2d Adverse Possession § 20
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
11. Elements and Requisites
C. Actual Possession
2. What Constitutes Actual Possession
a. In General
Topic Summary Correlation Table References
§ 20. Exclusion of others
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>16(1)
Page 44 of 665
Page I
An adverse claimant's acts of possession must be such as to indicate exclusive ownership of the property. [ 1]
Actual possession means a general holding and occupancy, with dominion over the property to the exclusion of
others.[2]
[FNI] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); Walter v. Jones, 15
111. 2d 220, 154 N.E.2d 250 (1958); Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME III, 733
A.2d 984 (Me. 1999); Lynch v. Lynch, 236 S.c. 612, 115 S.E.2d 301 (1960); Hardy v. Bumpstead, 41
S.W.2d 226, 76 A.L.R. 1488 (Tex. Comm'n App. 1931).
As to exclusiveness of possession, generally, see §§ 67 et seq.
[FN2] Concord Corp. v. Huff, 144 Colo. 72, 355 P.2d 73 (1960); Hightower v. Pendergrass, 662
S. W.2d 932 (Tenn. 1983).
In a quiet title action, although the plaintiffs possessed and used the land for limited purposes such as
parking or as access to a lake and as their "front yard," their possession and use of the land for the pur-
poses for which it was suitable alone were not sufficient to acquire title by adverse possession as
against other property owners in the addition, because the other residents of addition had unhindered
use of the lot during the 12-year period for various purposes, including parking and access to the lake.
Young v. Lacy, 221 Neb. 511, 378 N.W.2d 192 (1985).
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AMJUR ADVERSE § 20 Page 2
3 Am. Jur. 2d Adverse Possession § 20
AMJUR ADVERSE § 20
END OF DOCUMENT
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AMJUR ADVERSE § 21
3 Am. Jur. 2d Adverse Possession § 21
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
2. What Constitutes Actual Possession
a. In General
Topic Summary Correlation Table References
§ 21. Effect of the nature, character, and location of property
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=16(3), 17
Page 46 of 665
Page I
In detennining what amounts to actual possession of real property, considerable importance must be at-
tached to the nature, character, potential uses, and location of the property.[I] In other words, the rule requiring
actual possession should be applied reasonably in view of the location and character of the land claimed,[2] be-
cause adverse possession claims depend in part on the nature of the land in question.[3] For example, possessory
acts of an outlying and uncultivated piece of land may be proved by acts of ownership somewhat different from
those required with regard to land under enclosure and actual cUltivation.[4] Also, what is adverse possession is
one thing in a populous area, another thing in a sparsely settled one, and still a different thing in a city or vil-
lage.[5] The acts of dominion necessary for adverse possession of a vacant lot need not be the same as with re-
spect to a lot that is improved.[6] However, something more than mere occasional use of the land is needed to
establish adverse possession, even if the disputed land is wild, undeveloped forest;[7] wild and uncultivated land
cannot be made subject of adverse possession while it remains completely in a state ofnature.[8]
[FNI] Soper v. Lawrence Bros. Co., 201 U.S. 359, 26 S. Ct. 473, 50 L. Ed. 788 (1906); Marvel v. Bar-
ley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); Walter v. Jones, 15 Ill. 2d 220, 154
N.E.2d 250 (1958); Manville v. Gronniger, 182 Kan. 572, 322 P.2d 789 (1958); Dowley v. Morency,
1999 ME 137,737 A.2d 1061 (Me. 1999); Goen v. Sansbury, 219 Md. 289,149 A.2d 17 (1959); Bums
v. Foster, 348 Mich. 8, 81 N.W.2d 386 (1957); Feinstein v. McGuire, 297 S.W.2d 513 (Mo. 1957);
Thornburg v. Haecker, 243 Neb. 693, 502 N.W.2d 434 (1993); Jackson v. Gallegos, 38 N.M. 211, 30
P.2d 719 (1934); Ray v. Beacon Hudson Mountain Corp., 88 N.Y.2d 154, 643 N.Y.S.2d 939, 666
N.E.2d 532 (1996); Anderson v. Richards, 100 Or. 641, 198 P. 570 (1921); Mullis v. Winchester, 237
S.C. 487, 118 S.E.2d 61 (1961); Mandelbaum v. Looney Mercantile Co., 293 S.W. 203 (Tex. Civ. App.
Austin 1927); N.A.S. Holdings, Inc. v. Pafundi, 169 VI. 437, 736 A.2d 780 (1999), cert. denied, 528
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3 Am. Jur. 2d Adverse Possession § 21
U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672 (2000); Leake v. Richardson, 199 Va. 967, 103 S.E.2d
227 (1958).
[FN2] Wood v. McCoy, 228 Ark. 880, 311 S.W.2d 755 (1958); Roche v. Town of Fairfield, 186 Conn.
490,442 A.2d 911 (1982).
[FN3] Porter v. Schaffer, 126 Md. App. 237, 728 A.2d 755 (1999); Jarvis v. Gillespie, 155 VI. 633, 587
A.2d 981 (1991).
[FN4] Goen v. Sansbury, 219 Md. 289, 149 A.2d 17 (1959); Ray v. Beacon Hudson Mountain Corp., 88
N.Y.2d 154,643 N.Y.S.2d 939,666 N.E.2d 532 (1996).
[FN5] Cooper v. Cook, 220 Ark. 344, 247 S.W.2d 957 (1952); Smith v. Brown, 126 Ind. App. 545, 134
N.E.2d 823 (1956); Feinstein v. McGuire, 297 S.W.2d 513 (Mo. 1957); Price v. Humble Oil & Refining
Co., 152 S.W.2d 804 (Tex. Civ. App. Dallas 1941), writ refused w.o.m., (Oct. 22,1941).
[FN6] Hand v. Stanard, 392 So. 2d 1157 (Ala. 1980).
[FN7] Porter v. Schaffer, 126 Md. App. 237, 728 A.2d 755 (1999).
[FN8] Calhoun v. Woods, 246 Va. 41, 431 S.E.2d 285 (1993).
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AMJUR ADVERSE § 21
END OF DOCUMENT
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AMJUR ADVERSE § 22
3 Am. Jur. 2d Adverse Possession § 22
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
2. What Constitutes Actual Possession
a. In General
Topic Summary Correlation Table References
§ 22. Effect of potential uses of the property
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:= 17,24
Page 48 of 665
Page I
In determining what amounts to an actual possession of real property, considerable importance must be at-
tached to the use to which it can be applied, or to which the claimant may choose to apply it.[1] To establish ad-
verse possession, the claimant must use the real property for some purpose to which it is adapted,[2] and it is
sufficient that possession be shown by the continued use of the land for purposes for which it is susceptible.[3]
The standard to be applied to any particular tract of land is whether the possession comports with the ordinary
management of similar lands by their owners; if it does, satisfactory evidence of adverse possession is fur-
nished.[4]
CUMULATIVE SUPPLEMENT
Cases:
A mere entry, unaccompanied by an actual occupancy, is no possession at all, for purposes of adverse pos-
session. MEA Family Investments, LP v. Adams, 284 Ga. 407, 667 S.E.2d 609 (2008).
[END OF SUPPLEMENTI
[FNI] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); Walter v. Jones, 15
Ill. 2d 220, 154 N.E.2d 250 (1958); Allen v. Wiseman, 359 Mo. 1026, 224 S.W.2d 1010 (1949); Jack-
son v. Gallegos, 38 N.M. 211, 30 P.2d 719 (1934); Anderson v. Richards, 100 Or. 641, 198 P. 570
(1921); Mandelbaum v. Looney Mercantile Co., 293 S.W. 203 (Tex. Civ. App. Austin 1927); Leake v.
Richardson, 199 Va. 967,103 S.E.2d 227 (1958).
A defendant proved ownership by virtue of 30 years acquisitive prescription by showing that the de-
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3 Am. Jur. 2d Adverse Possession § 22
fendant used the property for farming, pasture, and timber operations beginning in 1938, which was in
accordance with the nature of the land and constituted possession of the property. Pipes v. Pipes, 343
So. 2d 329 (La. C!. App. 2d Cir. 1977), writ denied, 345 So. 2d 904 (La. 1977).
[FN2] Wemmer v. Young, 167 Neb. 495, 93 N.W.2d 837 (1958); Doyle v. Ellis, 549 S.W.2d 62 (Tex.
Civ. App. Waco 1977).
[FN3] Howe v. Natale, 451 A.2d I 198 (Me. 1982); Feinstein v. McGuire, 297 S.w.2d 513 (Mo. 1957).
[FN4] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); Smith v. Brown, 126
Ind. App. 545, 134 N.E.2d 823 (1956); Baptist Youth Camp v. Robinson, 1998 ME 175,714 A.2d 809
(Me. 1998); Mauck v. Bailey, 247 Md. 434, 231 A.2d 685 (1967); Fulton v. Rapp, 45 Ohio Op. 494, 59
Ohio L. Abs. 105,98 N.E.2d 430 (Ct. App. 2d Dist. Madison County 1950); Hoffman v. Freeman Land
and Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999); Anthony v. Searle, 681 A.2d 892 (R.l. 1996);
ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 774 P.2d 6 (1989); Clithero v. Fenner, 122 Wis. 356, 99
N.W. 1027 (1904).
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AMJUR ADVERSE § 22
END OF DOCUMENT
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AMJUR ADVERSE § 23
3 Am. Jur. 2d Adverse Possession § 23
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
2. What Constitutes Actual Possession
b. Possession through Another
Topic Summary Correlation Table References
§ 23. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=25
A.L.R. Library
Page 50 of 665
Page I
Owner's surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse
possession, 76 A.L.R. 3d 1202.
What one may do personally in the matter of taking and holding possession of real estate for adverse posses-
sion purposes may be done by or through another.[I] Thus, the requirement of actual possession of real property
necessary to acquire title by adverse possession need not be met by acts of the adverse claimant,[2] but may be
met through acts of another, who actually possesses and occupies the land for, and in subordination to, the ad-
verse claimant.[3] Accordingly, the requirement of actual possession may be met or kept fresh through posses-
sion on behalf of the adverse claimant by an agent,[4] licensee, relative,[5] or tenant.[6] The fact that a permittee
of an adverse c1aimant in possession of real estate pays no rent to the latter does not as a matter of law destroy
the efficacy of such possession for the benefit of the claimant.[7]
[FNI] Satterfield v. Peterson, 173 Neb. 618, 114 N.W.2d 376 (1962) (contract purchaser); Mahunda v.
Thomas, 55 Tenn. App. 470, 402 S.W.2d 485 (1965); Faubion v. Elder, 49 Wash. 2d 300, 301 P.2d 153
(1956) (overruled on other grounds by, Chaplin v. Sanders, 100 Wash. 2d 853, 676 P.2d 431 (1984)).
[FN2] Hanna v. Ferrier, 265 Ala. 450, 91 So. 2d 700 (1956); Combs v. Ezell, 232 Ky. 602, 24 S.W.2d
301 (1930); Jackson v. Gallegos, 38 N.M. 211, 30 P.2d 719 (1934); Cox v. Kelley, 1956 OK 72, 295
P.2d 1061 (Okla. 1956); Foote v. Kearney, 157 Wash. 681, 290 P. 226 (1930).
[FN3] Hanna v. Ferrier, 265 Ala. 450, 91 So. 2d 700 (1956); Hunsley v. Valter, 12 Ill. 2d 608, 147
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3 Am. Jur. 2d Adverse Possession § 23
N.E.2d 356 (1958); Combs v. Ezell, 232 Ky. 602, 24 S.W.2d 301 (1930); Jackson v. Gallegos, 38 N.M.
211, 30 P.2d 719 (1934); Foote v. Kearney, 157 Wash. 681,290 P. 226 (1930).
[FN4] Foote v. Kearney, 157 Wash. 681, 290 P. 226 (1930).
[FN5] Hanna v. Ferrier, 265 Ala. 450, 91 So. 2d 700 (1956); Hightower v. Pendergrass, 662 S.W.2d
932 (Tenn. 1983).
[FN6] § 24.
[FN7] Jackson v. Gallegos, 38 N.M. 21 I, 30 P.2d 719 (1934).
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AMJUR ADVERSE § 23
END OF DOCUMENT
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AMJUR ADVERSE § 24
3 Am. Jur. 2d Adverse Possession § 24
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
c. Actual Possession
2. What Constitutes Actual Possession
b. Possession through Another
Topic Summary Correlation Table References
§ 24. Tenant
West's Key Number Digest
West's Key Number Digest, Adverse Possession
Forms
Page 52 of 665
Page I
Judgment or decree-Quieting title in adverse through tenant of adverse possessor.
I BAm. Jur. Pleading and Practice Forms, Adverse Possession § 12.
The requirement of actual possession may be met or kept fTesh through possession, on behalf of the adverse
claimant, by a tenant of the claimant.[ I] In other words, the possession by a tenant of the claimant is in law the
possession of the claimant, who may claim the benefits.[2] However, the claimant is bound by nature of his or
her lessee's possession.[3]
It has been held that the rule that adverse possession of a third person's land by a tenant inures to the benefit
of the landlord generally does not apply if the land is not, either expressly or impliedly, within the terms of the
lease.[4] Thus, a landlord cannot base a claim of title by adverse possession to another's land on the possession
of a tenant if the land was not included in the lease.[5] However, it has also been held that a tenant's adverse
possession of a third person's land, not within the description in the lease, may inure to the landlord's benefit if
the circumstances in connection with such possession justified the implication that it was by virtue of the lease.[ 6]
[FNI] Family Land & Inv. Co. v. Williams, 273 Ala. 273, 138 So. 2d 696 (1961) (lessee); Hunsley v.
Valter, 12 Ill. 2d 608, 147 N.E.2d 356 (1958); Shoer v. Daffe, 337 Mass. 420, 149 N.E.2d 625 (1958);
Satterfield v. Peterson, 173 Neb. 618, 114 N.W.2d 376 (1962); Hightower v. Pendergrass, 662 S.W.2d
932 (Tenn. 1983); Turner v. Floyd C. Reno & Sons, Inc., 769 P.2d 364 (Wyo. 1989).
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3 Am. Jur. 2d Adverse Possession § 24
The words nactual occupation,t' in a statute providing that three years' actual occupation under a tax title
bars suit, did not require the tax sale purchaser to personally live on or use the premises; he could oc-
cupy the land through a tenant. Cox v. Richerson, 186 Miss. 576, 191 So. 99, 124 A.L.R. 1138 (1939).
[FN2] Crowden v. Grantland, 510 So. 2d 238 (Ala. 1987); Whittington v. Cameron, 385 Ill. 99, 52
N.E.2d 134, 150 A.L.R. 551 (1943); Combs v. Ezell, 232 Ky. 602, 24 S.W.2d 301 (1930); Moore v.
Hoffman, 327 Mo. 852, 39 S. W.2d 339, 75 A.L.R. 135 (193 I); Weiss v. Meyer, 208 Neb. 429, 303
N.W.2d 765 (1981); Dawson v. Tumlinson, 150 Tex. 451, 242 SW.2d 191 (1951); Foote v. Kearney,
157 Wash. 681, 290 P. 226 (1930).
For the purposes of establishing adverse possession of a disputed parcel of property, the claimant
demonstrated possession of property under a written claim of title through the written leases by which
the claimant leased the disputed property to various lessees over a 30-year period. DeChambeau v. Es-
tate of Smith, 132 Idaho 568, 976 P.2d 922 (1999).
[FN3] Turner v. Floyd C. Reno & Sons, Inc., 769 P.2d 364 (Wyo. 1989).
[FN4] Deregibus v. Silberman Furniture Co., 121 Conn. 633, 186 A. 553, 105 A.L.R. 1183 (1936); El-
well v. Barbrick, 279 Mass. 272, 181 N.E. 184 (1932); Schofield v. Harrison Land & Mining Co., 187
S.W. 61 (Mo. 1916).
As to tenant's adverse possession ofa third person's property, see § 132.
[FN5] Elwell v. Barbrick, 279 Mass. 272, 18 I N.E. 184 (1932); Capps v. Merrifield, 227 Mich. 194,
198 N.W. 918 (1924).
[FN6] Deregibus v. Silberman Furniture Co., 121 Conn. 633, 186 A. 553, 105 A.L.R. 1183 (1936);
Capps v. Merrifield, 227 Mich. 194, 198 N.W. 918 (1924).
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AMJUR ADVERSE § 24
END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 25
3 Am. Jur. 2d Adverse Possession § 25
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming. J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
2. What Constitutes Actual Possession
c. Possession under Color of Title; Constructive Possession
Topic Summary Correlation Table References
§ 25. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 1 4 , 26
A.L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 § 7.
Forms
Page 54 of 665
Page I
Instruction to jury-Character of possession-Without color of title-Actual possession of part---Claim to
whole tract ineffective. I BAm. Jur. Pleading and Practice Fonns, Adverse Possession § 72.
To establish title by adverse possession, actual possession of a tract of land claimed adversely under color
of title is generally just as necessary as actual possession without color of title.[I] However, if the adverse pos-
session is under a color of title, it is ordinarily sufficient if only part of the premises described in the color of
title are actually occupied; in such case, the adverse possessor is deemed to be in constructive possession of the
entire premises for purposes of acquiring title by adverse possession.[2]
[FNI] National Property Owners Ass'n v. Hogue, 229 Ark. 743, 318 S.W.2d lSI (1958); Diederich v.
Ware, 288 S.W.2d 643 (Ky. 1956); La Due v. Currell, 201 Va. 200,110 S.E.2d 217 (1959).
[FN2] § 124.
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Page 55 of 665
AMJUR ADVERSE § 25 Page 2
3 Am. Jur. 2d Adverse Possession § 25
AMJUR ADVERSE § 25
END OF DOCUMENT
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Westlaw
AMJUR ADVERSE § 26
3 Am. Jur. 2d Adverse Possession § 26
American Jurisprudence, Second Edition
Database updated November 201 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Il. Elements and Requisites
C. Actual Possession
2. What Constitutes Actual Possession
c. Possession under Color of Title; Constructive Possession
Topic Summary Correlation Table References
§ 26. Tax deed or title
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=26
Page 56 of 665
Page I
A tax deed or title, even though invalid, generally constitutes color of title on which adverse possession un-
der color of title may be based.[I] However, for a person to acquire title to land through adverse possession,
even when relying on an invalid tax deed or title as color of title, that person must have made an actual entry on
the land and taken actual possession of at least a part of it. [2]
Possession under an invalid tax deed need not be by the grantee personally to ripen into title by adverse pos-
session, but may be through an agent, licensee, or relative acting for the grantee.[3]
[FNI] §§ 138, 139.
[FN2] Veitch v. Hard, 200 Ala. 77, 75 So. 405 (1917); Kirker v. Daniels, 73 Ark. 263, 83 S.W. 912
(1904); Scott v. Ramseir, 61 Colo. 250, 156 P. 1094 (1916); Hempel v. Consolidated Land Co., 69 Fla.
277, 67 So. 915 (1915); Gilmore v. Frost-Johnson Lumber Co., 139 La. 354, 71 So. 536 (1916); John
Widdicomb Co. v. Card, 218 Mich. 72,187 N.W. 308,22 A.L.R. 545 (1922).
[FN3] Hanna v. Ferrier, 265 Ala. 450, 91 So. 2d 700 (1956).
As to possession through agent, licensee, or relative, generally, see §§ 23, 24.
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AMJUR ADVERSE § 26
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3 Am. Jur. 2d Adverse Possession § 26
END OF DOCUMENT
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westiaw.
AMJUR ADVERSE § 27
3 Am. Jur. 2d Adverse Possession § 27
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
2. What Constitutes Actual Possession
c. Possession under Color of Title; Constructive Possession
Topic Summary Correlation Table References
§ 27. Constructive possession
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=14, 25
Page 58 of 665
Page I
The constructive possession of real property is presumed to be in the holder of the record title[l] until there
is an actual ouster and expulsion of the record owner,[2] or actual hostile possession by another under a claim of
title.[3] A true owner who is in actual possession of a part of the land, claiming title to the whole, has the con-
structive possession of all of the land that is not in the actual possession of an intruder.[4]
Under the rule that the constructive possession of property is in the holder of the record title, a grantee of
property is in constructive possession, although the grantor remains in actual possession, in the absence of evid-
ence of any hostile claim by the grantor against the grantee.[5]
Constructive adverse possession of land ordinarily only occurs if actual possession of at least part of a tract
has been taken under color of title.[6] For an instrument to serve as color of title for adverse possession pur-
poses, it must adequately describe the property.[7] In the absence of adverse occupancy under color of title,[8]
there can be no constructive adverse possession of property on the part of an adverse claimant; under a claim of
right, the law requires actual possession of all of the property c1aimed.[9]
[FNI] Ennis v. Stanley, 346 Mich. 296, 78 N.W.2d 114 (1956).
[FN2] Salvis v. Lawyer, 73 Idaho 469, 253 P.2d 589 (1953); Luloff v. Blackburn, 274 Mont. 64, 906
P.2d 189 (1995); Wiechers v. McCormick, 122 A.D. 860, 107 N.Y.S. 835 (2d Dep't 1907).
[FN3] John T. Clark Realty Co. v. Harris, 253 A.D. 325, 253 A.D. 908, 2 N.Y.S.2d 137 (2d Dep't 1938)
; Laird Properties New England Land Syndicate v. Mad River Corp., 131 Vt. 268, 305 A.2d 562 (1973).
[FN4] Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882 (1946); Bettack v. Con-
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AMJUR ADVERSE § 27 Page 2
3 Am. Jur. 2d Adverse Possession § 27
achen, 235 Wis. 559, 294 N.W. 57 (1940).
A person who owned several tracts adjoining each other, all of which he held under deeds, patents, or
other writings, and who claimed to the extent of his boundaries, was in possession of the adjoining
tracts as well as the one on which he lived, if there was no actual adverse possession of any tract. Vider
v. Zavislan, 146 Colo. 519, 362 P.2d 163 (1961).
[FN5] Miller v. Hewell, 271 Ala. 286, 123 So. 2d 126 (1960).
[FN6] Long v. Ladd, 273 Ala. 410, 142 So. 2d 660 (1962); Smith v. Pittston Co., 203 Va. 408, 124
S.E.2d 1 (1962).
[FN7] § 127.
[FN8] §§ 123, 124.
[FN9] Griffin v. 1sgrig, 227 Ark. 931, 302 S.W.2d 777 (1957).
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AMJUR ADVERSE § 27
END OF DOCUMENT
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AMJUR ADVERSE § 28
3 Am, JUL 2d Adverse Possession § 28
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, 1, D., Bill Lindsley, 1,0., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
3. Particular Acts of Dominion
a. In General
Topic Summary Correlation Table References
§ 28. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:= 16(2), 17
Trial Strategy
Page 60 of 665
Page I
Proof of acquisition of title to agricultural land by adverse possession. Acquisition of Title to Property by
Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261 §§ 18 et seq.
Generally, the particular acts of dominion or control by which title by adverse possession may be acquired
depend largely on the circumstances of each case.[I] Thus, there is no general rule for determining the particular
acts of dominion that will constitute adverse possession.[2] However, particular acts required to acquire title by
adverse possession are sometimes specified by statute.[3]
All acts of a possessory nature by an adverse claimant are to be considered collectively, rather than inde-
pendently, in determining the sufficiency ofpossession.[4]
In detennining whether particular acts of dominion indicate an adverse possession, the usual and ordinary
use of similar properties by their owners should be taken into consideration.[5] The rule requiring actual posses-
sion of property to acquire title by adverse possession is ordinarily complied with if the particular acts of domin-
ion by the adverse claimant are of such nature as the claimant would exercise over his or her own property and
would not exercise over another's, and the acts amount to such dominion over the property as it is reasonably ad-
apted to.[6]
A mere temporary use of the property by a trespasser at intervals, whether such intervals are remote or fre-
quent, is not enough to show actual possession.[7] Thus, trespassers who go upon property for a special purpose,
such as hunting, fishing, camping, surveying, etc., do not thereby acquire possession.[8]
CUMULATIVE SUPPLEMENT
Cases:
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AMJUR ADVERSE § 28 Page 2
3 Am. Jur. 2d Adverse Possession § 28
Adjacent landowners who acted in a way consistent with true ownership of record owners' property by in-
stalling landscaping that included railroad ties, stone blocks, fencing, bushes, flowers, and at least one tree on
the property possessed the necessary intent to possess the land as required to satisfy the adversity requirement of
adverse possession, even if they did not possess the subjective intent to deprive the record owners of their title.
Evanich v. Bridge, 119 Ohio S!. 3d 260, 2008-0hio-3820, 893 N.E.2d 481 (2008).
lEND OF SUPPLEMENTI
[FNI] Isham v. Cud lip, 33 III. App. 2d 254, 179 N.E.2d 25 (2d Dist. 1962); Thomas v. Flynn, 169 Neb.
458,100 N.W.2d 37 (1959); Cox v. Kelley, 1956 OK 72, 295 P.2d 1061 (Okla. 1956).
[FN2] Ben-Jay [nv. Co. v. Stillman, 114 Fla. 703,154 So. 829 (1934).
[FN3] Di Leo v. Pecksto Holding Corporation, 304 N.Y. 505, 109 N.E.2d 600 (1952); Central Pac. Ry.
Co. v. Tarpey, 51 Utah 107,168 P. 554,1 A.L.R. 1319 (1917).
[FN4] Long v. Ladd, 273 Ala. 410, 142 So. 2d 660 (1962).
[FN5] Preston v. Preston, 1949 OK 59, 201 Okla. 555, 207 P.2d 313 (1949); Norgard v. Busher, 220
Or. 297, 349 P.2d 490, 80 A.L.R.2d 1161 (1960); La Due v. Currell, 20 I Va. 200, 110 S.E.2d 217
(1959); Clithero v. Fenner, 122 Wis. 356, 99 N.W. 1027 (1904).
An adverse claimant's engineers' acts in going upon grazing land and making a topographical map, and
marking points with red flags, did not constitute a taking of possession, because such acts would not
substantially, if at all, interfere with the owner's use of the property as grazing land. Concord Corp. v.
Huff, 144 Colo. 72, 355 P.2d 73 (1960).
As to the effect of the potential uses of property, generally, see § 22.
[FN6] Wood v. McCoy, 228 Ark. 880, 3[ I S.W.2d 755 (1958); Monroe v. Rawlings, 331 Mich. 49, 49
N.W.2d 55 (1951).
[FN7] Rucker v. Jackson, 180 Ala. 109, 60 So. 139 (1912); Poole v. City of Lake Forest, 238 Ill. 305,
87 N.E. 320 (1909); Dartmouth College v. Rose, 172 Neb. 764, 112 N.W.2d 256 (1961); Price v. Tom-
rich Corp., 275 N.C. 385,167 S.E.2d 766 (1969); La Due v. Currell, 201 Va. 200, 1[0 S.E.2d 217 (1959).
Occasional acts of trespass by wheels of cars and trucks ordinarily adjacent to a driveway were not suf-
ficient to support a claim of adverse possession. Elsasser v. Szymanski, 163 Neb. 65, 77 N.W.2d 815 (1956).
[FN8] Concord Corp. v. Huff, 144 Colo. 72, 355 P.2d 73 (1960).
As to seasonal use, generally, see § 75.
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3 Am. Jur. 2d Adverse Possession § 28
rights reserved.
AMJUR ADVERSE § 28
END OF DOCUMENT
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Westlaw,
AMJUR ADVERSE § 29
3 Am. Jur. 2d Adverse Possession § 29
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
3. Particular Acts of Dominion
a. In General
Topic Summary Correlation Table References
§ 29. Character of acts if dominion
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=20, 24
A.L.R. Library
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353 § 14.
Page 63 of 665
Page I
Actual possession, for the purposes of an adverse possession claim, may be indicated by the claimant's re-
ceipt of the rents, issues, and profits of the property;[I] conveyance the property;[2] leasing of the property;[3]
encumberance of the property;[4] quarrying of the property;[5] or improvement of the property.[6]
To demonstrate actual occupancy when the boundaries of an adversely possessed parcel are not fixed by
fences or barriers or established by color of title, the adverse claimant need not make improvements on every
square foot ofthe land.[7]
Practice Guide:
Visible evidence of use, such as occupation, fencing, and construction of pennanent improvements, provides
particularly compelling evidence of actual possession by an adverse claimant.[8]
[FNI] Warner v. Wickizer, 1930 OK 419,146 Okla. 232, 294 P. 130 (1930).
[FN2] Stiff v. Cobb, 126 Ala. 381, 28 So. 402 (1900); Warner v. Wickizer, 1930 OK 419, 146 Okla.
232,294 P. 130 (1930).
[FN3] Family Land & [nv. Co. v. Williams, 273 Ala. 273, [38 So. 2d 696 (1961); Warner v. Wickizer,
1930 OK419, 146 Okla. 232, 294 P. 130 (1930).
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AMJUR ADVERSE § 29 Page 2
3 Am. Jur. 2d Adverse Possession § 29
[FN4] Stiff v. Cobb, 126 Ala. 381, 28 So. 402 (1900); Warner v. Wickizer, 1930 OK 419, 146 Okla.
232,294 P. 130 (1930).
[FN5] N.A.S. Holdings, Inc. v. Pafundi, 169 VI. 437, 736 A.2d 780 (1999), cerl. denied, 528 U.S. 1079,
120 S. Ct. 798, 145 L. Ed. 2d 672 (2000).
[FN6] Norman v. Smedley, 1961 OK 143,363 P.2d 839 (Okla. 1961); Pioneer Investment & Trust Co.
v. Board of Education of Salt Lake City, 35 Utah 1,99 P. 150 (1909); Illinois Steel Co. v. Bilot, 109
Wis. 418, 84 N.W. 855 (1901).
[FN7] Smith v. Hayden, 772 P.2d 47 (Colo. 1989).
[FN8] Vezey v. Green, 35 P.3d 14 (Alaska 2001).
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AMJUR ADVERSE § 29
END OF DOCUMENT
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AMJUR ADVERSE § 30
3 Am. Jur. 2d Adverse Possession § 30
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
3. Particular Acts of Dominion
a. In General
Topic Summary Correlation Table References
§ 30. Combination of acts showing dominion
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=I6(l)
A.L.R. Library
Page 65 of 665
Page I
Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48
A.L.R. 3d 818 §§ 21 to 29.
Adverse possession may be evidenced by a combination of various acts, such as using the land for grazing
and the removal of timber;[I] grazing and gathering a natural crop;[2] grazing and cultivation;[3] grazing, cul-
tivation, and removal of timber;[4] grazing, gathering a natural crop, and cultivation;[5] grazing, gathering a nat-
ural crop, and removal of timber;[6] gathering a natural crop and cultivation;[7] gathering natural crop, cultiva-
tion, and removal oftimber;[8] parking and other purposes;[9] or cultivation and removal of timber. [I 0]
CUMULATIVE SUPPLEMENT
Cases:
Alleged owner of disputed tract of land adjacent to railway failed to establish adverse possession under
claim of right or prescription under color of title in railroad's quiet-title action; evidence indicated that survey on
which alleged owner relied lacked surveyor's signature on seal, tract showed no signs of having been disturbed
by hunting, gardening, and storage that alleged owner's mother had purportedly permitted, and railroad paid
taxes on tract. Thompson v. Central of Georgia R. R., 282 Ga. 264, 646 S.E.2d 669 (2007).
Neighbors satisfied actual or hostile possession element of claim for adverse possession; record owner's
father never gave permission for use of disputed parcel, and neighbors and their predecessor in interest engaged
in possessory acts of building fence, planting crops, and continually harvesting timber on parcel. Apperson v.
White, 950 So. 2d 1113 (Miss. Ct. App. 2007).
lEND OF SUPPLEMENTI
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3 Am. Jur. 2d Adverse Possession § 30
[FNI] Kayser v. Dixon, 309 So. 2d 526 (Miss. 1975); Breuer v. Covert, 47 Or. App. 225,614 P.2d 1169
( 1980).
An adverse claimant proved title by clear and convincing proof of adverse possession because, during
the 15-year period, the disputed tract was continuously used for pasture land and all timber and brush
was cleared from the area by the claimant, even though the record owner continued to pay taxes. Coun-
cil Bluffs Say. Bank v. Simmons, 243 N.W.2d 634 (Iowa 1976).
But see Knowles v. Golden Stream Fishing Club, Inc., 331 So. 2d 253 (Ala. 1976), holding that evid-
ence that the claimant had cut and sold timber from the disputed parcel on at least two occasions during
the past 30 years and that the claimant grazed cattle on the land from time to time was insufficient to es-
tablish title by adverse possession because the record title holder had paid taxes and his agent, an engin-
eer, had placed markers on the boundary line.
[FN2] McKelvy v. Cooper, 165 Colo. 102,437 P.2d 346 (1968).
[FN3] Suire v. Primeaux, 363 So. 2d 963 (La. Ct. App. 3d Cir. 1978), writ denied, 365 So. 2d 243 (La.
1978); Johnson v. Bell, 666 P.2d 308 (Utah 1983).
Evidence that the defendant and her predecessors in title for more than 10 years farmed a tract, pastured
cattle and horses on it, raised chickens and hogs, mowed the grass, and maintained and used the drive-
way was sufficient to establish adverse possession to the strip of land. Allen v. Rooker, 619 S. W.2d 363
(Mo. Ct. App. S.D. 1981).
[FN4] Dierks Lumber & Coal Co. v. Vaughn, 131 F. Supp. 219 (ED. Ark. 1954), judgment affd, 221
F.2d 695 (8th Cir. 1955); Hoppe v. Sauter, 416 S.W.2d 912 (Tex. Civ. App. Texarkana 1967), writ re-
fused n.r.e., (Oct. 4, 1967).
[FN5]llIinois Ry. Museum, Inc. v. Siegel, 132111. App. 2d 77, 266 N.E.2d 724 (2d Dist. 1971).
A claimant's use of land for pasturing, cropping, soil conservation, and growing hay for more than 20
years was sufficient to establish title by adverse possession. 1llinois Ry. Museum, Inc. v. Siegel, 132 Ill.
App. 2d 77, 266 N.E.2d 724 (2d Dist. 1971).
[FN6] Wheeler v. Gorman, 80 Minn. 462, 83 N.W. 442 (1900); Clithero v. Fenner, 122 Wis. 356, 99
N.W. 1027 (1904).
[FN7] Ely v. Fuson, 297 Ky. 325,180 S.W.2d 90 (1944).
[FN8] May v. Sorrell, 153 Ga. 47, III S.E. 810 (1922).
[FN9] Smith v. Hayden, 772 P.2d 47 (Colo. 1989).
[FNIO] G.S. Baxter & Co. v. Wetherington, 128 Ga. 801,58 S.E. 467 (1907).
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3 Am. Jur. 2d Adverse Possession § 30
rights reserved.
AMJUR ADVERSE § 30
END OF DOCUMENT
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AMJUR ADVERSE § 31
3 Am. Jur. 2d Adverse Possession § 31
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
3. Particular Acts of Dominion
a. In General
Topic Summary Correlation Table References
§ 3 I. Residence
West's Key Number Digest
West's Key Number Digest, Adverse Possession €o=I8
Page 68 of 665
Page I
Generally, actually residing on the property claimed is not a necessary element of adverse possession,[I] be-
cause a person may be in possession of real estate without residing on it.[2] However, statutory provisions may
have an effect on whether residence on the property is required.[3]
[FNI] Crowden v. Grantland, 510 So. 2d 238 (Ala. 1987); Whittington v. Cameron, 385 Ill. 99, 52
N.E.2d 134, 150 A.L.R. 551 (1943); Clear Lake Amusement Corp. v. Lewis, 236 Iowa 132, 18 N.W.2d
192 (1945); Manville v. Gronniger, 182 Kan. 572, 322 P.2d 789 (1958); Morris v. Thomas Forman Co.,
206 Ky. 191, 266 S.W. 873 (1924); Hibbard v. Robert G. Fromkin Woolen Corp., 156 Me. 433, 165
A.2d 49 (1960); Monroe v. Rawlings, 331 Mich. 49, 49 N.W.2d 55 (1951); Fredericksen v. Henke, 167
Minn. 356, 209 N.W. 257, 46 A.L.R. 785 (1926); Bilby v. Wire, 77 N.W.2d 882 (N.D. 1956); Herron v.
Swarts, 1960 OK 53, 350 P.2d 314 (Okla. 1960); Lynch v. Lynch, 236 S.C. 612, liS S.E.2d 301 (1960);
Hardy v. Bumpstead, 41 S. W.2d 226, 76 A.L.R. 1488 (Tex. Comm'n App. 1931).
Residence by an adverse claimant on the land claimed is not necessary where neither the situation of the
property nor the use to which it is adapted or applied admits of, or requires, such evidence of owner-
ship. Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417,104 A.2d 908 (1954).
[FN2] Herron v. Swarts, 1960 OK 53, 350 P.2d 314 (Okla. 1960).
[FN3] Manternach v. Studt, 230 Ill. 356, 82 N.E. 829 (1907).
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3 Am. Jur. 2d Adverse Possession § 31
AMJUR ADVERSE § 31
END OF DOCUMENT
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AMJUR ADVERSE § 32
3 Am. Jur. 2d Adverse Possession § 32
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
3. Particular Acts of Dominion
b. Cultivation or Timber Cutting
Topic Summary Correlation Table References
§ 32. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£=>21
A.L.R. Library
Page 70 of 665
Page I
Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48
A.L.R. 3d 818 §§ 16 to 19.
Cultivation of land may be sufficient in itself to constitute the possession necessary for acquiring it by ad-
verse possession, depending on the nature of the land and the uses to which it may be adapted.[I] Thus, the actu-
al possession of land may be evidenced by clearing and cultivation,[2] such as setting out an orchard and caring
for the trees.[3] However. it has been held that plowing, grating, seeding, mowing, fertilizing, and planting are
not enough to establish adverse possession of strip ofland adjacent to claimants' property.[4]
Cutting grass or hay may establish the requisite dominion over property.[ 5]
Landscaping constitutes an improvement to land for adverse possession purposes. [6]
CUMULATIVE SUPPLEMENT
Cases:
In cases involving a claim of adverse possession to wild or woodlands, the claimant generally must establish
that the land has been enclosed or reduced to cultivation. Sea Pines Condominium III Ass'n v. Steffens, 61 Mass.
App. Ct. 838, 814 N.E.2d 752 (2004), review denied, 442 Mass. 1112, 816 N.E.2d 1223 (2004).
[END OF SUPPLEMENTI
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3 Am. Jur. 2d Adverse Possession § 32
[FNI] Hayes v. Cotter, 439 So. 2d 102 (Ala. 1983); Cheek v. Wainwright, 246 Ga. 171,269 S.E.2d 443
(1980); Hunsley v. Valter, 12 Ill. 2d 608, 147 N.E.2d 356 (1958); Mack v. Luebben, 215 Neb. 832, 341
N.W.2d 335 (1983); Gross v. Robinson, 36 Wyo. 392, 256 P. 80, 57 A.L.R. 578 (1927).
[FN2] Hardy v. Bumpstead, 41 S.W.2d 226, 76 A.L.R. 1488 (Tex. Comm'n App. 1931); Grayson Roper
Ltd. Partnership v. Finlinson, 782 P.2d 467 (Utah 1989).
An adverse claimant's conservation-oriented uses of the property, which included planting indigenous
rather than non-native plants and thinning trees and undergrowth rather than clearing them entirely, had
the same legal weight as would more transformative or destructive uses. Vezey v. Green, 35 P.3d 14
(Alaska 2001).
But see Shandaken Reformed Church of Mount Tremper v. Leone, 87 A.D.2d 950, 451 N.Y.S.2d 227
(3d Dep't 1982), holding that the defendants did not acquire ownership of parcel by adverse possession
because there was insufficient evidence as to a distinct, hostile assertion on the part of defendants over
the parcel, in that the defendant's testimony that he maintained a garden on the land in dispute and occa-
sionally mowed the area in question was vague as to both the area covered by the garden and as to the
exact years the garden was planted.
[FN3] Davies v. Wickstrom, 56 Wash. 154, 105 P. 454 (1909).
[FN4] Beaver v. Vandall, 547 N.E.2d 802 (Ind. 1989).
[FN5] Weiss v. Meyer, 208 Neb. 429, 303 N.W.2d 765 (1981) (the annual production of hay by a party
or those under his direction for 60 or more years was more than an occasional trespass and was suffi-
cient to constitute adverse possession).
A court did not err in finding that a landowner had established title to disputed land through adverse
possession because the landowner had mowed the grass and harvested hay on the property, and the
evidence showed that the landowner and his predecessors in title had put the disputed land to the same
use that its true owner would have put the land. Thompson v. Hayslip, 74 Ohio App. 3d 829, 600
N.E.2d 756 (4th Dis!. Lawrence County 1991).
[FN6] Lewis v. Aslesen, 2001 SD 131,635 N.W.2d 744 (S.D. 2001).
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rights reserved.
AMJUR ADVERSE § 32
END OF DOCUMENT
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Westlaw
AMJUR ADVERSE § 33
3 Am. Jur. 2d Adverse Possession § 33
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
3. Particular Acts of Dominion
b. Cultivation or Timber Cutting
Topic Summary Correlation Table References
§ 33. Necessity
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=21
Page 72 of 665
Page I
Generally, to constitute adverse possession of land, it is not absolutely necessary that the claimant cultivate
the land.[ I] However, some statutory provisions require cultivation of real propetty to establish title by adverse
possession.[2]
Practice Guide:
Under a statute recognizing adverse possession if it has been protected by a substantial enclosure or if it has
been usually cultivated or improved, the adverse claimant need only prove possession by one of the means stated.[3]
[FNI] Manville v. Gronniger, 182 Kan. 572, 322 P.2d 789 (1958); Monroe v. Rawlings, 331 Mich. 49,
49 N.W.2d 55 (1951).
[FN2] Lewis v. Village of Lyons, 54 A.D.2d 488,389 N.Y.S.2d 674 (4th Dep't 1976); Richey v. Miller,
142 Tex. 274, 177 S.W.2d 255, 170 A.L.R. 832 (1944); Central Pac. Ry. Co. v. Tarpey, 51 Utah 107,
168 P. 554, I A.L.R. 1319 (1917).
[FN3] Lindgren v. Martin, 130 Idabo 854, 949 P.2d 1061 (1997); Swecker v. Dom, 181 Mont. 436,593
P.2d 1055 (1979); Lewis v. Aslesen, 2001 SO 131,635 N.W.2d 744 (S.D. 2001).
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rights reserved.
AMJUR ADVERSE § 33
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3 Am. Jur. 2d Adverse Possession § 33
END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 34
3 Am. Jur. 2d Adverse Possession § 34
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
3. Particular Acts of Dominion
b. Cultivation or Timber Cutting
Topic Summary Correlation Table References
§ 34. Pasturing or grazing
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 2 2
A. L.R. Library
Page 74 of665
Page 1
Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48
A.L.R. 3d 818 §§ 3, 5.
Using land for pasturing or grazing may be sufficient to constitute the possession necessary to adverse pos-
session.[ I]
It has been held that a claimant may be in adverse possession of unenclosed land by using it for grazing,[2]
but is has also been held, apparently as a matter of law, that one does not have adverse possession of unenclosed
land by using it for grazing,[3] and that if grazing is relied on to support a claim of adverse possession, it must
be accompanied by enclosure of the lands[4] or other strong supporting acts.[S] If land is wild and unenclosed,
the conclusion that title by adverse possession was not acquired may be supported on the ground that the use of
such land for grazing purposes does not satisfy the requirement that the possession must be open and notorious,
or does not evidence the necessary intent to claim the land, or does not sufficiently define the extent of the ad-
verse claim, or that some other necessary ingredient of the doctrine of adverse possession is lacking.[ 6]
Adverse possession of lands by grazing is limit to those areas that are reasonably suited for grazing pur-
poses.[7]
Practice Guide:
If the claimant has enclosed the land with a fence, it is not necessary to show that any animal actually grazed up
to fence line, if the claimants and their predecessors claimed all the land within the fence and treated it as their
property to use if they wished.[8]
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AMJUR ADVERSE § 34 Page 2
3 Am. Jur. 2d Adverse Possession § 34
[FN I] Tillison v. Taylor, 572 So. 2d 429 (Ala. 1990); Munro v. Eshe, 113 Colo. 19, 156 P.2d 700
(1944); Quarles v. Arcega, 114 N.M. 502, 841 P.2d 550 (C!. App. 1992); Fessler v. Thompson, 1942
OK 172, 191 Okla. 450, 130 P.2d 513 (1942); Hoffinan v. Freeman Land and Timber, LLC., 329 Or.
554,994 P.2d 106 (1999).
But see Lemon v. Madden, 216 Or. 539, 340 P.2d 977 (1959), holding that evidence that some of the
claimant's sheep grazed on land for a few weeks in the spring as they were being herded to summer pas-
ture and on their return in the fall, and that occasionally some of his cattle wandered on and across the
land, was insufficient to support a claim of title by adverse possession.
[FN2] Cleveland v. Dow Chemical Co., 168 Colo. 388,451 P.2d 741 (1969); Springer v. Durette, 217
Or. 196, 342 P.2d 132 (1959).
[FN3] England v. Ally Ong Hing, 105 Ariz. 65, 459 P.2d 498 (1969); Smith v. Town of Fowler, 138
Colo. 359, 333 P.2d 1034 (1959); Tragerv. Elliot, 106 Kan. 228,187 P. 875 (1920).
[FN4] Fadem v. Kimball, 1979 OK CIV APP 40,612 P.2d 287 (Okla. Ct. App. Div. I 1979); Rhodes v.
Cahill, 802 S.W.2d 643 (Tex. 1990), reh'g of cause overruled, (Oct. 10, 1990).
[FN5] Elliott v. West, 665 S.W.2d 683 (Mo. Ct. App. S.D. 1984); Farella v. Rumney, 649 P.2d 185
(Wyo. 1982).
Pasturage is of some value as bearing upon acquisition of title by adverse possession, but to vest title,
there must be strong supporting acts of other types and character. Geoghegan v. Krauss, 228 Miss. 231,
87 So. 2d 461 (1956).
[FN6] Springer v. Durette, 217 Or. 196,342 P.2d 132 (1959).
[FN7] Adams v. Lamicq, 118 Utah 209, 221 P.2d 1037 (1950).
[FN8] Whittemore v. Amator, 148 Ariz. 173,713 P.2d 1231 (1986).
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AMJUR ADVERSE § 34
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Westlaw.
AMJUR ADVERSE § 35
3 Am. Jur. 2d Adverse Possession § 35
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
3. Particular Acts of Dominion
b. Cultivation or Timber Cutting
Topic Summary Correlation Table References
§ 35. Removing timber or timber-based crops
West's Key Number Digest
West's Key Number Digest, Adverse Possession >8:=23
A.L.R. Library
Page 76 of 665
Page I
Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48
A.L.R. 3d 818 §§ 20, 21.
Forms
Instruction to jury-Character of possession-Timberland. IB Am. Jur. Pleading and Practice Forms, Ad-
verse Possession §§ 104 to 106.
It has been held that cutting timber may be sufficient to establish the dominion over property necessary to a
claim of adverse possession,[ I] but it has also been held that cutting timber is not sufficient.[2]
Observation:
Tree fanning, when carried out in a manner as to attract the attention of those entitled to notice, can be evidence
of actual possession.[3]
To determine whether the cutting of timber suffices to constitute possession of land, It IS necessary to in-
quire whether the actual use and enjoyment of the land by the claimant amounted in kind and degree to the use
and enjoyment to be expected of the average owner of such property.[4]
If the land in question is woodland, there must ordinarily be such continuous and persistent cutting of timber
or wood from the tract as to evidence a claim of ownership and be an advertisement to the world that the party is
occupying the entire tract.[5] Occasional or sporadic entries on land for the purpose of cutting timber are not
sufficient to establish title by adverse possession.[6]
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AMJUR ADVERSE § 35 Page 2
3 Am. Jur. 2d Adverse Possession § 35
Some state statutes provide that one may acquire title to unenclosed land by removing timber for fuel, but
the benefit of such statutes is limited to persons having color oftitle.[7]
Making turpentine, using maple groves, or gathering nuts or similar wild crops may also amount to actual
possession of timber lands if the acts amount to more than a trespass.[8]
[FN I] Grooms v. Mitchell, 426 So. 2d 820 (Ala. 1983); Cousino v. Western Shore Lumber Co., 179
Cal. I, 175 P. 406 (1918); McRae v. Ketchum, 138 Fla. 610, 189 So. 853 (1939); Maine Gravel Ser-
vices, Inc. v. Haining, 1998 ME 18,704 A.2d 417 (Me. 1998); Berry v. Coppersmith, 212 N.C. 50, 193
S.E. 3 (1937); Bardin v. Commercial Ins. & Trust Co., 82 S.c. 358, 64 S.E. 165 (1909).
Sufficient evidence supported a referee's finding that an adverse possessor proved actual, open, notori-
ous, hostile, continuous, and exclusive possession for the full statutory period because the possessor: (1)
paid the mortgages on the property; (2) paid taxes on the property; (3) marked the boundary lines, and
(4) sold timber cut ITom the property. Miller v. Leaird, 307 S.c. 56,413 S.E.2d 841 (1992).
To substantiate a claim of title to swampy woodland by adverse possession by one without color of title
as against the owner of the legal title, on the strength of occasional cutting and sales of timber ITom the
land, there must have been such persistent and continuous cutting from a particular tract of land, to the
exclusion of the owners, as to advertise to the world that the party so doing was occupying that specific
tract and claiming it as his own. Clanahan v. Morgan, 268 Ala. 71, 105 So. 2d 429 (1958).
[FN2] Mills v. Kelley, 214 Ga. 403,105 S.E.2d 316 (1958).
Adverse possession could not be acquired of land adjoining the land actually possessed, under a con-
veyance amounting merely to color of title to the two adjoining tracts, merely by cutting timber on it
and warning trespassers off a few times over a period of years. Huston v. Graves, 213 S. W. 77, 5
A.L.R. 423 (Mo. 1919).
Even if an adverse claimant could establish that her husband had cleared and sold cedar trees ITom the
tract, that was not sufficient to establish actual and visible appropriation of the land, as required for ad-
verse possession. Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990), reh'g of cause ovelTUled, (Oct. 10, 1990).
[FN3] Cheek v. Wainwright, 246 Ga. 171,269 S.E.2d 443 (1980).
[FN4] McMullen v. Dowley, 418 A.2d 1147 (Me. 1980).
[FN5] Grooms v. Mitchell, 426 So. 2d 820 (Ala. 1983).
[FN6] Bergen v. Dixon, 527 So. 2d 1274 (Ala. 1988); Dixon v. Dixon, 97 Ga. App. 54, 102 S.E.2d 74
(1958); Kirby Lumber Corp. v. Lindsey, 455 S.W.2d 733 (Tex. 1970).
[FN7] Kern County Land Co. v. Nighbert, 75 Cal. App. 103,241 P. 915 (1st Dist. 1925).
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AMJUR ADVERSE § 35 Page 3
3 Am. Jur. 2d Adverse Possession § 35
[FN8] Richbourg v. Rose. 53 Fla. 173, 44 So. 69 (1907) (turpentine); Carson v. Keith, 1967 OK 206,
433 P.2d 956 (Okla. 1967) (pecans).
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rights reserved.
AMJUR ADVERSE § 35
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Westlaw
AMJUR ADVERSE § 36
3 Am. Jur. 2d Adverse Possession § 36
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
3. Particular Acts of Dominion
c. Enclosure
Topic Summary Correlation Table References
§ 36. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession €;::::::>19
A.L.R. Library
Fence as factor in fixing location of boundary line-modem cases, 7 A.L.R. 4th 53 § 14.
Page 79 of 665
Page I
Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48
A.L.R. 3d 818 §§ 10, II.
Forms
Bill of particulars-Acts relied on to establish adverse possession-Enclosure-Uses and improvements
enumerated. I BAm. Jur. Pleading and Practice Forms, Adverse Possession § 24.
Instruction to jury-Elements of adverse possession-Necessity that land be enclosed or improved. I BAm.
Jur. Pleading and Practice Forms, Adverse Possession § 69.
Complaint, petition, or declaration-Allegation-Enclosure. IB Am. Jur. Pleading and Practice Forms, Ad-
verse Possession §§ 93 to 95.
The significance of an intentional fencing of land by a claimant is that the act itself is evidence of an asser-
tion of a claim of ownership.[I] The enclosure of land is undoubtedly evidence of possession, and, either of it-
self or in connection with other acts of dominion, may be sufficient for an adverse possession claim.[2]
However, it has been held in some jurisdictions that title cannot be acquired merely by fencing land, without
grazing it or farming it or putting it to other use.[3]
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3 Am. Jur. 2d Adverse Possession § 36
[FN I] Cockrell v. Kelley, 428 So. 2d 622 (Ala. 1983); Smith v. Tippett, 569 A.2d 1186 (D.C. 1990);
Horky v. Schriner, 215 Neb. 498, 340 N.W.2d I (1983); DeAnnan v. Surls, 618 S.W.2d 88 (Tex. Civ.
App. Tyler 1981), writ refused n.r.e., (Sept. 16, 1981).
[FN2] Faulks v. Schrider, 114 F.2d 587 (App. D.C. 1940); City of Dennott v. Stinson, 144 Ark. 208,
222 S.W. 54, 9 A.L.R. 1367 (1920); Ross v. Burkhard Inv. Co., 90 Cal. App. 201, 265 P. 982 (3d Dist.
1928); Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417,104 A.2d 908 (1954); Pittman v. Simmons,
408 So. 2d 1384 (Miss. 1982); Woodside v. Durham, 317 Mo. 15,295 S.w. 772, 53 A.L.R. 884 (1927);
Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932); Davies v. Wickstrom, 56 Wash. 154, 105 P. 454
(1909); Clithero v. Fenner, 122 Wis. 356, 99 N.W. 1027 (1904); Kimball v. Turner, 993 P.2d 303
(Wyo. 1999).
The mere existence of a fence around the property for a period of at least 55 years offered a substantial
basis for holding that the defendant property owners held title to the property within the fence by ad-
verse possession. Roy v. Kayser, 501 So.2d 1110 (Miss. 1987).
An adverse claimant proved title by adverse possession by his predecessor because, during a IS-year
period, the predecessor ordered tenants to cut trees when they were down and maintained a fence, using
trees from the tract for posts to replace those that had rotted, and because the predecessor's horse ran on
the disputed property and he or a tenant ran cattle on it. Braley v. Hess, 48 Or. App. 505, 617 P.2d 308
(1980).
[FN3] Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954); Doenz v. Garber, 665
P.2d 932 (Wyo. 1983).
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AMJUR ADVERSE § 37
3 Am. Jur. 2d Adverse Possession § 37
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
3. Particular Acts of Dominion
c. Enclosure
Topic Summary Correlation Table References
§ 37. Necessity
West's Key Number Digest
West's Key Number Digest, Adverse Possession €;= 19
Page 81 of 665
Page I
Although enclosure of land is undoubtedly evidence of possession,[I] it is not essential to the acquisition of
title to land by adverse possession that it be enclosed[2] or fenced.[3] Thus, as a general rule, adverse possession
may be asserted without the enclosure of the property involved,[4] particularly if enclosure is impracticable, the
land is not susceptible of enclosure, or the value of the property would be adversely affected.[5] Enclosure has
been deemed essential, however, in cases of a mixed possession,[6] in some cases to support an adverse claim if
the land is used merely for grazing purposes,[7] and to indicate the extent of the possession,[8] especially in the
absence of actual occupancy of the premises.[9] Also, it is the general rule in some states that title by adverse
possession can not be shown as wilderness or woodland that has always been open and unenclosed.[ I 0]
Caution:
Some statutory provisions require enclosure of some sort,[ 11] including a requirement that the enclosure be sub-
stantial,[12] or require either enclosure or substantial improvement.[13]
An enclosure need not be absolutely secure to satisfy a "substantial enclosure" requirement of an adverse
possession statute.[14] For example, planting and maintaining a line of trees on the disputed property may con-
stitute a substantial enclosure of the property.[15]
[FNI] § 36.
[FN2] Darby v. Robbins, 409 So. 2d 722 (Ala. 1981); Truck-Trailer Supply Co. v. Farmer, 181 Kan.
396, 311 P.2d 1004 (1957); Blickenstaff v. Bromley, 243 Md. 164, 220 A.2d 558 (1966); Wanha v.
Long, 255 Neb. 849, 587 N.W.2d 531 (1998); Kimble v. Allen, 1956 OK 135,298 P.2d 1042 (Okla.
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AMJUR ADVERSE § 37 Page 2
3 Am. Jur. 2d Adverse Possession § 37
1956); Norgard v. Busher, 220 Or. 297, 349 P.2d 490, 80 A.L.R.2d 1161 (1960); Short v. Lyness, 572
S. W.2d 116 (Tex. Civ. App. Waco 1978).
[FN3] Baudin v. Charrier, 137 So. 2d 440 (La. Ct. App. 3d Cir. 1962); Monroe v. Rawlings, 331 Mich.
49,49 N.W.2d 55 (1951); EI Cerrito, Inc. v. Ryndak, 60 Wash. 2d 847, 376 P.2d 528 (1962).
Acquisition of title by adverse possession to a strip of tidelands occupied by the claimants under a mis-
taken belief that their land extended there was not precluded by the claimants' failure to construct a
fence on the tidelands to separate the land claimed by them from the abutting land. Norgard v. Busher,
220 Or. 297, 349 P.2d 490,80 A.L.R.2d 1161 (1960).
[FN4] Abbott v. Perkinson, 144 Ky. 495, 139 S.W. 745 (191 I); Robin v. Brown, 308 Pa. 123, 162 A.
161 (1932); Bensdorff v. Uihlein, 132 Tenn. 193, 177 S.W. 481, 2 A.L.R. 1364 (1915); Young v. City
of Lubbock, 130 S.W.2d 418 (Tex. Civ. App. Amarillo 1939); Sherrard v. Henry, 88 W. Va. 315, 106
S.E. 705, 21 A.L.R. 645 (1921); Illinois Steel Co. v. Bilot, 109 Wis. 418, 84 N.W. 855 (1901).
[FN5] Lamons v. Mathes, 33 Tenn. App. 609, 232 S. W.2d 558 (1950).
[FN6] Robin v. Brown, 308 Pa. 123,162 A. 161 (1932).
[FN7] Alleman v. Joffrion, 411 So. 2d 1142 (La. Ct. App. 1st Cir. 1982), writ denied, 415 So. 2d 945
(La. 1982); Welch v. Mathews, 642 S.W.2d 829, 36 A.L.R.4th 835 (Tex. App. Tyler 1982).
[FN8] Lewis v. Village of Lyons, 54 A.D.2d 488,389 N.Y.S.2d 674 (4th Dep't 1976); Lindgren v. Mar-
tin, 130 Idaho 854, 949 P.2d 1061 (1997); Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932); Bender v.
Brooks, 103 Tex. 329, 127 S.W. 168 (1910); WeIner v. Steams, 40 Utah 185, 120 P. 490 (1911); Sher-
rard v. Henry, 88 W. Va. 315,106 S.E. 705, 21 A.L.R. 645 (1921).
[FN9] Robin v. Brown, 308 Pa. 123,162 A. 161 (1932).
[FNIO] Cowden v. Cutting, 339 Mass. 164, 158 N.E.2d 324 (1959).
[FN11] Di Leo v. Pecksto Holding Corporation, 304 N.Y. 505, 109 N.E.2d 600 (1952); Michelsen v.
Leskowicz, 55 N.Y.S.2d 831 (Sup 1945), judgment affd, 270 A.D. 1042, 63 N.Y.S.2d 191 (2d Dep't
1946); Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932); Central Pac. Ry. Co. v. Tarpey, 51 Utah 107,
168 P. 554, I A.L.R. 1319(1917).
As to statutes requiring enclosure of land in relation to the payment of taxes, see § 148.
[FNI2] Mastin v. Village of Lima, Livingston County, 86 A.D.2d 777, 448 N.Y.S.2d 274 (4th Dep't
1982); Mixon v. Clark, 518 S. W.2d 402 (Tex. Civ. App. Tyler 1974), writ refused n.r.e.
[FNI3] § 33.
[FNI4] Schultz v. Dew, 1997 SD 72, 564 N.W.2d 320 (S.D. 1997).
[FN 15] Lewis v. Aslesen, 2001 SD 131, 635 N. W.2d 744 (S.D. 2001).
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AMJUR ADVERSE § 37 Page 3
3 Am. Jur. 2d Adverse Possession § 37
rights reserved.
AMJUR ADVERSE § 37
END OF DOCUMENT
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AMJUR ADVERSE § 38
3 Am. Jur. 2d Adverse Possession § 38
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
3. Particular Acts of Dominion
c. Enclosure
Topic Summary Correlation Table References
§ 38. Adequacy of enclosure; what constitutes a "substantial" enclosure
West's Key Number Digest
West's Key Number Digest, Adverse Possession €;= 19
Page 84 of 665
Page I
To constitute the basis for an adverse possession claim, a claimant's enclosure should be appropriate for the
purposes to which the premises are adapted, or for which the occupant may desire to use them.[ I]
Observation:
The adequacy of an enclosure may be affected by statutory requisites in some states. For example, under a stat-
utory requirement that a fence must be substantial to support a claim of adverse possession, the court must look
to the whole fencing pattern and the use made of the fence, as well as all other facts and circumstances. [2]
If an enclosure is essential or is relied on as the evidence of possession, it must, to be effective, be complete
and so open and notorious as to charge the owner with knowledge of it.[3] The basic question is whether the en-
closure, like other acts of possession, is sufficient to "fly the flag" over the land and put the true owner on notice
that the property is held under an adverse claim of ownership.[4] This rule is applicable if a fence or a hedgerow
or the like is relied on to delineate the boundaries of the adverse claim;[5] even if it is insufficient to tum live-
stock, a fence may be sufficient to "fly the flag" and put the owner on notice of adverse possession.[6] In fact, an
enclosure having no purpose of physical exclusion may be sufficient to indicate the boundaries of an adverse
claim even though it is only a mere furrow turned with a plow around the land, or a line marked by cutting away
the brush.[7]
Constructing a fence and using the enclosed land for grazing constitutes adverse possession, even if the
fence is not maintained in a perfect state ofrepair.[8]
[FNI] Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932); Illinois Steel Co. v. Bilot, 109 Wis. 418, 84
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Page 85 of 665
AMJUR ADVERSE § 38 Page 2
3 Am. Jur. 2d Adverse Possession § 38
N.W. 855 (1901).
A claimant acquired title by open, continuous, adverse possession of land for the statutory period be-
cause he fenced part of the land to pen cattle, he fenced the entire tract later with a three-wire fence to
preserve it for haycutting, and the fence was always kept in repair. Carpenter v. Smith, 76 Ark. 447, 88
S. W. 976 (1905).
[FN2] Mixon v. Clark, 518 S.W.2d 402 (Tex. Civ. App. Tyler 1974), writ refused n.r.e.
[FN3] Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932).
The evidence substantiated a finding of sufficient notice of a hostile claim to support a claim of adverse
possession, and a verdict in favor of the adverse possessors was proper, because the disputed tract was
within their fenced-off enclosure, the fences had always been maintained and were capable of turning
cattle, witnesses testified as to seeing cattle grazing on the disputed plot, adverse claimants used the
land for grazing purposes for more than 12 consecutive years prior to the suit and, during that time, the
record owner had actual notice that the land was within the adverse possessors' enclosure. Mixon v.
Clark, 518 S.W.2d 402 (Tex. Civ. App. Tyler 1974), writ refused n.r.e.
[FN4] Dowdle v. Wheeler, 76 Ark. 529, 89 S. W. 1002 (1905); Mason v. Gaddis Farms, Inc., 230 Miss.
666, 93 So. 2d 629 (1957); Seavey v. Williams, 97 Or. 310, 191 P. 779 (1920); Robin v. Brown, 308
Pa. 123, 162 A. 161 (1932).
Evidence that a fence had been considered the boundary by both parties and that the adverse possessor
had openly used the land for pasture and a garden was sufficient to satisfY the elements of possession to
claim the property between the surveyed boundary and the fence. Johnson v. Roberts, 532 S. W.2d 530
(Mo. Ct. App. 1976).
[FN5] Mason v. Gaddis Farms, Inc., 230 Miss. 666, 93 So. 2d 629 (1957).
As to partition or division fences, generally, see 35A Am. Jur. 2d, Fences §§ 6 et seq.
[FN6] Grayson v. Robinson, 240 Miss. 59, 126 So. 2d 247 (1961).
[FN7] Hurt v. Given, 445 So. 2d 549 (Ala. 1983); Sherrard v. Henry, 88 W. Va. 315, 106 S.E. 705, 21
A.L.R. 645 (1921); minois Steel Co. v. Bilot, 109 Wis. 418, 84 N.W. 855 (1901).
[FN8] Pueblo of Santa Ana v. Baca, 844 F.2d 708 (10th Cir. 1988) (applying New Mexico law).
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AMJUR ADVERSE § 39
3 Am. Jur. 2d Adverse Possession § 39
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
3. Particular Acts of Dominion
c. Enclosure
Topic Summary Correlation Table References
Page 86 of 665
Page I
§ 39. Adequacy of enclosure; what constitutes a "substantial" enclosure-Use of a natural barrier as an
enclosure
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=> I 6(2), 19
Forms
Instruction to jury-Character of possession-Enclosure-By artificial or natural means. I BAm. Jur.
Pleading and Practice Fonms, Adverse Possession § 101.
It is no objection that natural barriers are taken advantage of in constructing an enclosure around land that is
adverse possessed, if the natural barriers are not out of proportion to the artificial barriers erected. If the natural
and the artificial barriers used are sufficient to clearly indicate dominion over the premises, and to give notoriety
to the claim of possession, it is sufficient to put the statute of limitations in rnotion.[l] For example, even if a
peninsula that is adversely claimed and that adjoins lands owned by the adverse claimant is unfenced, it can be
considered as enclosed for all practical purposes on the water boundary.[21
CUMULATIVE SUPPLEMENT
Cases:
There was no evidence that wooded area along boundary was cultivated or improved or protected by sub-
stantial inclosure, as required for adverse possession by person claiming title not founded upon written instru-
ment. McKinney RPAPL § 522. Seisser v. Eglin, 7 A.D.3d 505, 776 N.Y.S.2d 314 (2d Dep't 2004).
lEND OF SUPPLEMENT I
[FN II Pipes v. Pipes, 343 So. 2d 329 (La. Ct. App. 2d Cir. 1977), writ denied, 345 So. 2d 904 (La.
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Page 87 of 665
AMJUR ADVERSE § 39 Page 2
3 Am. Jur. 2d Adverse Possession § 39
1977); Castles v. Lawrence, 203 Mont. 421, 662 P.2d 589 (1983) (lake boundary); Cuka v. Jamesville
Hutterian Mut. Soc., 294 N.W.2d 419 (S.D. 1980).
[FN2] Springer v. Durette, 217 Or. 196,342 P.2d 132 (1959) (also holding that the pasturing of a penin-
sula by an adjoining landowner was sufficient act of dominion in view of the natural barrier).
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AMJUR ADVERSE § 39
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AMJUR ADVERSE § 40
3 Am. Jur. 2d Adverse Possession § 40
American Jurisprudence, Second Edition
Database updated N ovem ber 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
C. Actual Possession
3. Particular Acts of Dominion
c. Enclosure
Topic Summary Correlation Table References
Page 88 of 665
Page I
§ 40. Adequacy of enclosure; what constitutes a "substantial" enclosure-Casual fencing; enclosure with
other land
Definitions:
"Casual fencing" is the making of an enclosure by joining onto existing fences erected for purposes other than
and wholly foreign to the purposes for which the enclosure is to be used.[I] If a fence exists before the adverse
claimant takes possession of the land and the claimant fails to demonstrate the purpose for which it was erected,
then it is a "casual fence," rather than a fence that IIdesignedly encloses" an area.[2]
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC= 19
A.L.R. Library
Fence as factor in fixing location of boundary line-modem cases, 7 A.L.R. 4th 53 §§ 16 to 20.
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353 § 10.
If the character of the use of the enclosed land by an adverse claimant is not such as to constitute, of itself,
an actual and visible appropriation of the land, that use cannot be aided by a fence that casually creates the en-
closure, and to the construction of which neither the adverse claimant nor any person under whom the adverse
claimant claims has contributed.[3] In other words, an adverse claimant can derive no aid in establishing the
claim from an enclosure casually created by third persons in effecting a purpose of their own, and who are
strangers to both the claimant and the true owner of the enclosed land.[4]
The use of an insubstantial temporary fence, which is not maintained continuously, to close a gap between
line fences erected by the owners of adjoining lands, is not sufficient to cause the statute of limitations to begin
to run against the record owners.[5] However, the fact that an enclosure is formed by casual fencing does not, in
and of itself, make the use and occupancy of the enclosure nonadverse.[6]
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AMJUR ADVERSE § 40 Page 2
3 Am. Jur. 2d Adverse Possession § 40
Caution:
Repairing or maintaining a casual fence, even for the express purpose of keeping the adverse claimant's animals
within the enclosed area, generally does not change a causal fence into a designed enclosure, but the claimant
may so change the character of casual fence that it becomes a designed enclosure.[7)
CUMULA TlVE SUPPLEMENT
Cases:
Where a fence existed prior to the claimant's possession of the land and the claimant fails to demonstrate the
purpose for which the fence was erected, the fence is a "casual fence" insufficient to support the actual and vis-
ible possession element of a claim for adverse possession. Myers v. Wright, 224 S.W.3d 466 (Tex. App. Dallas
2007).
Actual and visible possession necessary for a claim of adverse possession can be established by a design-
edly enclosed fence, but not by a casual fence. Myers v. Wright, 224 S.W.3d 466 (Tex. App. Dallas 2007).
The presence, quality, location, and purpose of fencing in relation to the disputed property and property ad-
jacent to it are facts to be weighed along with the other circumstances in the adverse possession case. Braunstein
v. Robinson Family Ltd. Partnership LLP, 2010 WY 26, 226 P.3d 826 (Wyo. 2010).
lEND OF SUPPLEMENTI
[FNI) Wynn v. Mendoza, 287 S.W.2d 217 (Tex. Civ. App. Galveston 1956), writ refused n.r.e; Rutar
Farms & Livestock, Inc. v. Fuss, 651 P.2d 1129 (Wyo. 1982).
[FN2) Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990), reh'g of cause overruled, (Oct. 10, 1990).
[FN3) Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954).
[FN4) West Production Co. v. Kahanek, 132 Tex. 153, 121 S.W.2d 328 (Comm'n App. 1938).
An adverse possession claimant failed to prove each element of adverse possession as a matter of law
despite her testimony that her husband had cleared and sold cedar trees from the disputed tract, as well
as evidence that the claimant had paid taxes on all the land enclosed by a fence that included the cedar
tracts, and that the claimant and her husband had grazed cattle and goats on the tract, because the record
did not establish as a matter of law that the fence surrounding the cedar tracts was a designed enclosure,
rather than a casual fence. Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990), reh'g of cause overruled,
(Oct. 10, 1990).
[FN5) Reeves v. Porta, 173 Or. 147, 144 P.2d 493 (\944).
[FN6) Wynn v. Mendoza, 287 S.W.2d 217 (Tex. Civ. App. Galveston 1956), writ refused n.r.e.
[FN7) Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990), reh'g of cause overruled, (Oct. 10, 1990).
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3 Am. Jur. 2d Adverse Possession § 40
rights reserved.
AMJUR ADVERSE § 40
END OF DOCUMENT
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AMJUR ADVERSE" D REF
3 Am. Jur. 2d Adverse Possession" D Refs.
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
Topic Summary Correlation Table
Research References
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=58 to 79, 85
A.L.R, Library
A.L.R. Digest: Adverse Possession §§ 21 to 26.5
A.L.R. Index: Adverse Possession
Trial Strategy
Permissive Possession or Use of Land, 28 Am. Jur. Proof of Facts 2d 703
Forms
IA Am. Jur. Legal Forms 2d, Adverse Possession § 11:12
IB Am. Jur. Pleading and Practice Forms, Adverse Possession §§ 10,64,65,73,76
Page 91 of 665
Page I
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AMJUR ADVERSE" D REF
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Westlaw.
AMJUR ADVERSE § 41
3 Am. Jur. 2d Adverse Possession § 41
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
I. In General
Topic Summary Correlation Table References
§ 41. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession (:::::>58
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 9 et seq.
Page 92 of 665
Page I
To acquire title by adverse possession, the possession must be hostile.[l] To be "adverse," the possession of
a claimant of real property must be hostile,[2] not only as against the true owner,[3] but also as against the
world,[4] excepting only the govemment.[5]
[FNI] Shandaken Reformed Church of Mount Tremper v. Leone, 87 A.D.2d 950, 451 N.Y.S.2d 227 (3d
Dep't 1982); Abar v. Rogers, 23 Cal. App. 3d 506, 100 Cal. Rptr. 344 (I st Dis!. 1972); Smith v. Hay-
den, 772 P.2d 47 (Colo. 1989); Levering v. City of Tarpon Springs, 92 So. 2d 638 (Fla. 1957); Cluff v.
Bonner County, 121 Idaho 184,824 P.2d 115 (1992); Ford v. Rhymes, 233 Miss. 651, 103 So. 2d 363
(1958); Burris v. McDougald, 832 S.W.2d 707 (Tex. App. Corpus Christi 1992); Content v. Dalton, 122
N.J. Eq. 425,194 A. 286,112 A.L.R. 1031 (Ct. Err. & App. 1937).
[FN2] Archuleta v. Rose, 136 Colo. 211, 315 P.2d 201 (1957); Kline v. Kramer, 179 Ind. App. 592, 386
N.E.2d 982 (3d Dis!. 1979); Meyers v. Canutt, 242 Iowa 692, 46 N.W.2d 72, 24 A.L.R.2d I (1951);
Comforto v. Skirke, 289 Mich. 707,287 NW. 353 (1939); Volkerding v. Brooks, 359 S.W.2d 736 (Mo.
1962); Van Valkenburgh v. Lutz, 304 N.Y. 95, 106 N.E.2d 28 (1952); Broadhurst v. American Colloid
Co., 85 S.D. 65,177 N.W.2d 261 (1970); Slater v. Murphy, 55 Wash. 2d 892, 339 P.2d 457 (1959).
[FN3] Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000); Enos v. Murtaugh, 47 Cal. App. 2d
269, 117 P.2d 905 (2d Dist. 1941); Seaboard Air Line Ry. Co. v. Board of Bond Trustees of Special
Road and Bridge Dist. No. I of Alachua County, 91 Fla. 612,108 So. 689, 46 A.L.R. 870 (1926);
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AMJUR ADVERSE § 41 Page 2
3 Am. JUL 2d Adverse Possession § 41
Schmidt v. Williams, 34 Idaho 723, 203 P. 1075 (1921); Kurz v. Blume, 407 Ill. 383, 95 N.E.2d 338, 25
A.L.R.2d 1258 (1950); Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937); Bloodsworth v.
Murray, 138 Md. 631, 114 A. 575, 22 A.L.R. 1450 (1921); Pastorino v. City of Detroit, 182 Mich. 5,
148 N.W. 231 (1914); Trimboli v. Kinkel, 226 N.Y. 147, 123 N.E. 205, 5 A.L.R. 1385 (1919); Baxter v.
Girard Trust Co., 288 Pa. 256, 135 A. 620, 49 A.L.R. 1011 (1927); Lynch v. Lynch, 236 S.c. 612, 115
S.E.2d 301 (1960); Gibbs v. Lester, 41 S.W.2d 28,80 A.L.R. 431 (Tex. Comm'n App. 1931); Salt Lake
Inv. Co. v. Fox, 32 Utah 301, 90 P. 564 (1907); State v. King, 77 W. Va. 37, 87 S.E. 170 (1915).
[FN4] Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882 (1946); Marengo Cave Co.
v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937); Bond v. O'Gara, 177 Mass. 139, 58 N.E. 275 (1900);
Frank v. Smith, 138 Neb. 382, 293 N.W. 329, 134 A.L.R. 458 (1940); Lynch v. Lynch, 236 S.c. 612,
115 S.E.2d 301 (1960); Bank of Vernal v. Uintah County, 122 Utah 410, 250 P.2d 581 (1952).
[FN5] Blumer v. Iowa Railroad Land Co., 129 Iowa 32, 105 N.W. 342 (1905), affd, 206 U.S. 482, 27
S. Ct. 769, 51 L. Ed. 1148 (1907); Maas v. Burdetzke, 93 Minn. 295, 101 N.W. 182 (1904); Smith v.
Jones, 103 Tex. 632,132 S.W. 469 (1910).
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AMJUR ADVERSE § 41
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AMJUR ADVERSE § 42
3 Am. Jur. 2d Adverse Possession § 42
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
I. In General
Topic Summary Correlation Table References
§ 42. Origin and duration
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=58
Page 94 of 665
Page I
An adverse claim must be hostile at its inception.[1] There are numerous instances wherein the occupancy
of land without original intent to claim adversely subsequently became hostile in fact;[2] but these instances do
not affect the principle that an adverse possession must be hostile from the beginning, and that this hostility
must continue for the full statutory period,[3] on the part either of the original adverse claimant or of those who
claim to hold under such c1aimant.[4]
A statute specifYing the length of time during which an adverse possession must be maintained to ripen into
title begins to run at the time the possession of the claimant becomes hostile to that of the owner, which is gener-
ally the time of entry;[5] but if the original entry is in subordination to the title of the true owner, the possession
so taken only becomes hostile when the one in possession claims title, and the running of the statute must date
from that time.[6]
[FNI] Lovejoy v. School Dis!. No. 46 of Sedgwick County, 129 Colo. 306, 269 P.2d 1067 (1954);
Dewitt v. Shea, 203 III. 393, 67 N.E. 761 (1903); Delacey v. Commercial Trust Co., 51 Wash. 542, 99
P. 574 (1909).
[FN2] §§ 50, 194.
lFN3] Weston v. Morgan, 162 S.C. 177,160 S.E. 436 (1931).
[FN4] Weston v. Morgan, 162 S.c. 177, 160 S.E. 436 (1931).
[FN5] Blumer v. Iowa Railroad Land Co., 129 Iowa 32, 105 N.W. 342 (1905), afrd, 206 U.S. 482. 27
S. Ct. 769, 5 I L. Ed. 1148 (1907); Weiner v. Steams, 40 Utah 185, 120 P. 490 (191 I).
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AMJUR ADVERSE § 42 Page 2
3 Am. Jur. 2d Adverse Possession § 42
As to commencement of statute of limitations against the right to recover the possession of real prop-
erty, see 51 Am. Jur. 2d, Limitation of Actions § 120.
[FN6] § 50.
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AMJUR ADVERSE § 43
3 Am. Jur. 2d Adverse Possession § 43
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
2. What Constitutes Hostile Possession
Topic Summary Correlation Table References
§ 43. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession tf;;::;::;::>67
A.L.R. Library
Page 96 of 665
Page I
Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48
A.LR. 3d 818 § 6.
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6 § 8.
The requirement for adverse possession that the possession be hostile does not require ill will or malice, but
an assertion of ownership adverse to that of the true owner and all others.[I] Possession is hostile if the pos-
sessor holds and claims the property as his or her own, whether by mistake or willfully.[2]
Hostility of possession means that one in possession of land claims the exclusive right to that land, and oc-
cupies it as its owner.[3] To be hostile, the claimant's possession must be clear, distinct, and unequivocaI.[4]
Hostile possession must be such as to import a denial of the owner's title[5] or oust the owner trom the land.[6]
Possession that is unaccompanied by any express or inferable recognition of the right of the real owner is
adverse.[7]
It is not necessary that the claimant expressly declare the possession to be hostile,[8] or that the claimant's
use of the premises be such as to indicate at all times a hostile occupancy.[9] It also is not essential that the use
of the adverse claimant be challenged by, and the use continued over the objection of, the true owner.[IO]
The mere possession ofland does not in and of itself show hostility to the owner.[II]
A possession that is in law rightful and not an invasion of the rights of others is not adverse.[12]
Practice Guide:
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AMJUR ADVERSE § 43
Page 2
3 Am. Jur. 2d Adverse Possession § 43
A parol gift of land, when proven by clear and convincing evidence, establishes a presumption that the donee's
claim to the property is hostile to the donor.[13]
CUMULATIVE SUPPLEMENT
Cases:
To constitute adverse possession, the claimant must either remain permanently upon the land, or else occupy
it in such a way, as to leave no doubt on the mind of the true owner, not only who the adverse claimant was, but
that it was his purpose to keep him out of his land. MEA Family Investments, LP v. Adams, 284 Ga. 407, 667
S.E.2d 609 (2008).
lEND OF SUPPLEMENT I
[FNI] Rorebeck v. Criste, I Ariz. App. I, 398 P.2d 678 (1965); Smith v. Hayden, 772 P.2d 47 (Colo.
1989); Estate of Wells v. Estate of Smith, 576 A.2d 707 (D.C. 1990); Isham v. Cudlip, 33 III. App. 2d
254, 179 N.E.2d 25 (2d Dis!. 1962); Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME III, 733
A.2d 984 (Me. 1999); Blickenstaff v. Bromley, 243 Md. 164, 220 A.2d 558 (1966); City of South
Greenfield v. Cagle, 591 S.W.2d 156 (Mo. C!. App. S.D. 1979); Wanha v. Long, 255 Neb. 849, 587
N. W.2d 531 (1998); Hightower v. Pendergrass, 662 S.W.2d 932 (Tenn. 1983); Jarvis v. Gillespie, 155
V!. 633, 587 A.2d 981 (1991); Calhoun v. Woods, 246 Va. 41, 431 S.E.2d 285 (1993); EI Cerrito, Inc.
v. Ryndak, 60 Wash. 2d 847, 376 P.2d 528 (1962); Burkhardt v. Smith, 17 Wis. 2d 132, 115 N.W.2d
540 (1962).
[FN2] Strickland v. Markos, 566 So. 2d 229 (Ala. 1990).
[FN3] Vezey v. Green, 35 P.3d 14 (Alaska 2001); Agers v. Reynolds, 306 S.W.2d 506 (Mo. 1957); Ber-
glund v. Sisler, 210 Neb. 258, 313 N.W.2d 679 (1981); Faulconer v. Williams, 327 Or. 381, 964 P.2d
246 (1998); Young Kee Kim v. DOllval Corp., 259 Va. 752, 529 S.E.2d 92 (2000); Chaplin v. Sanders,
100 Wash. 2d 853, 676 P.2d 431 (1984).
[FN4] Consolidated Dis!. No.4 of Jackson County v. Glandon, 363 Mo. I, 247 S.W.2d 770 (1952);
Pritchard v. Lewis, 125 Wis. 604,104 N.W. 989 (1905).
[FN5] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME Ill, 733 A.2d 984 (Me. 1999); EI Cer-
rito, Inc. v. Ryndak, 60 Wash. 2d 847, 376 P.2d 528 (1962); Conley v. Conley, 168 W. Va. 500, 285
S.E.2d 140 (1981).
As to permissive possession, see § 47.
[FN6] Clark v. Drska, I Conn. App. 481, 473 A.2d 325 (1984).
[FN7] Rossner v. JeflTey, 234 Ark. 723, 354 S.W.2d 705 (1962).
[FN8] Bond v. O'Gara, 177 Mass. 139, 58 N.E. 275 (1900); Pastorino v. City of Detroit, 182 Mich. 5,
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AMJUR ADVERSE § 43 Page 3
3 Am. Jur. 2d Adverse Possession § 43
148 N.W. 231 (1914); Peters v. S!. Louis, 226 Mo. 62, 125 S.W. 1134 (1910); Coquille Mill & Mer-
cantile Co. v. Johnson, 52 Or. 547, 98 P. 132 (1908).
[FN9] Fear v. Barwise, 93 Kan. 131, 143 P. 505 (1914).
[FNIO] Peters v. Gillund, 186 S.W.2d 1019 (Tex. Civ. App. Galveston 1945), writ refused w.o.m.,
(June 13, 1945).
[FN II] City of New Orleans v. New Orleans Canal, Inc., 412 So. 2d 975 (La. 1981); Orsborn v. Deep
Rock Oil Corp., 153 Tex. 281,267 S. W.2d 781 (1954).
[FNI2] Mooney v. Canter, 311 S.W.2d 1 (Mo. 1958); State ex reI. Edie v. Shain, 348 Mo. 119, 152
S.W.2d 174 (1941).
[FN 13] Vezey v. Green, 35 P.3d 14 (Alaska 2001).
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AMJUR ADVERSE § 44
3 Am. Jur. 2d Adverse Possession § 44
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
2. What Constitutes Hostile Possession
Topic Summary Correlation Table References
§ 44. Effect of relationship between claimant and owner
West's Key Number Digest
West's Key Number Digest, Adverse Possession <C=60 to 64
Page 99 of 665
Page I
In detennining what amounts to hostility, the relation that the adverse possessor occupies with reference to
the owner is important.[l] If the parties are strangers[2] and the possession is open and notorious,[3] it may be
deemed to be hostile.[4] However if the parties are related, there may be a presumption that the use is per-
missive.[5]
[FNI] State v. Heard, 199 S.W.2d 191 (Tex. Civ. App. Austin 1946), affd, 146 Tex. 139,204 S.W.2d
344 (1947).
As to adverse possession between members of a family, see §§ 180 et seq.
[FN2] Ward v. Rodriguez, 43 N.M. 191, 88 P.2d 277 (1939); Buchanan v. Nixon, 163 Tenn. 364, 43
S.W.2d 380,80 A.L.R. 151 (1931).
[FN3] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954).
[FN4] Mintz v. Millican, 266 Ala. 479, 97 So. 2d 769 (1957).
[FN5] § 49.
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AMJUR ADVERSE § 45
3 Am. Jur. 2d Adverse Possession § 45
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
2. What Constitutes Hostile Possession
Topic Summary Correlation Table References
§ 45. Intent; effect of mistake
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>65
Page 100 of 665
Page I
It has been held that the intention with which possession is taken and maintained is the controlling factor in
determining its hostile character.[I] In other words, it is the intention of the claimant that guides the entry and
fixes its character;[2] no matter how exclusive and hostile to the true owner the possession may be in appear-
ance, it cannot be adverse unless it is accompanied by the intent on the part of the occupant to make it so.[3] Un-
der this view, a claimant must intend to hold land as the claimant's own against the owner and all the world and
intend to appropriate it to the exclusion of all others in order to constitute adverse possession. [4] If the possessor
intends to hold the land only until or unless the true owner claims the premises or demands rent, there is no
claim of right under adverse possession.[5]
However, it has also been held that the possessor's subjective intent is irrelevant if his or her acts import an
adverse character to his or her use of the land.[6] Thus, the pertinent inquiry is whether the claimant has proved
the elements based on claimant's objective manifestation of adverse use, rather than on the claimant's subjective
intent.[7]
Caution:
In jurisdictions in which hostile intent is required, it is not necessary that the occupant intends to take away from
the true owner something that the occupant knows belongs to another, or even that the occupant was indifferent
as to the facts of the legal title; because it is the intention to possess, and not the intent to take irrespective of the
right of the real owner, that governs, if the possessor occupies land intending to occupy it and own it, the occu-
pancy is adverse.[8] It is not necessary that the use be made either in the belief or under a claim that it is legally
justified; instead, the essential quality is that the use not be made in subordination to those against whom it is
claimed to be adverse.[9] Adverse possession does not depend on the remote motives or purposes of the occu-
pant, nor on whether the motivation is guilty or innocent.[IO]
A mistaken belief of the claimants that he or she owns the land in question does not prevent his or her pos-
session from being hostile.[ II] Thus, one may obtain perfect title to real property by adverse possession even if
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AMJUR ADVERSE § 45 Page 2
3 Am. Jur. 2d Adverse Possession § 45
there is no intention by adverse possessor to claim land not belonging to the claimant.[ 12]
CUMULATIVE SUPPLEMENT
Cases:
Where land is occupied through mistake as to the property line with the intention to claim only to the true
line, wherever it may be, a claim for adverse possession of the mistakenly occupied land will be denied. Brewer
v. Murphy, 161 Cal. App. 4th 928, 74 Cal. Rptr. 3d 436 (5th Dist. 2008).
Title may be acquired through adverse possession irrespective of any question of motive or of mistake in ad-
versely possessing the property. Evanich v. Bridge, 119 Ohio St. 3d 260, 2008-0hio-3820, 893 N.E.2d 481 (2008).
lEND OF SUPPLEMENTI
[FNI] Boese v. Crane, 182 Kan. 777, 324 P.2d 188 (1958); Chariton v. Crocker, 665 S.W.2d 56 (Mo.
Ct. App. S.D. 1984); Hawkins v. Mahoney, 1999 MT 296,297 Mont. 98, 990 P.2d 776 (1999); Wanha
v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998).
[FN2] Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932).
[FN3] Baber v. Henderson, 156 Mo. 566, 57 S.W. 719 (1900); Lynch v. Lynch, 236 S.c. 612, 115
S.E.2d 301 (1960); Metze v. Meetze, 231 S.C. 154,97 S.E.2d 514 (1957).
[FN4] Taranto v. Peoples Bank of Biloxi, 242 Miss. 607, 136 So. 2d 213 (1962); Dugan v. Jensen, 244
Neb. 937, 510 N.W.2d 313 (1994); Hoffman v. Freeman Land and Timber, LLC., 329 Or. 554, 994 P.2d
106 (1999).
[FN5] Hoffman v. McKneely, 352 So. 2d 260 (La. Ct. App. 2d Cir. 1977); Rude v. Marshall, 54 Mont.
27, 166 P. 298 (1917); Calfee v. Duke, 544 S.W.2d 640 (Tex. 1976); Illinois Steel Co. v. Bilol, 109
Wis. 418, 84 N.W. 855 (1901).
[FN6] Mavromoustakos v. Padussis, 112 Md. App. 59, 684 A.2d 51 (1996); Totman v. Malloy, 431
Mass. 143,725 N.E.2d 1045 (2000); Kellison v. Mclsaac, 131 N.H. 675, 559 A.2d 834 (1989).
[FN7] Porter v. Schaffer, 126 Md. App. 237, 728 A.2d 755 (1999); Kellison v. Mclsaac, 131 N.H. 675,
559 A.2d 834 (1989).
[FN8] City of South Greenfield v. Cagle, 591 S.W.2d 156 (Mo. Ct. App. S.D. 1979); Nebraska State
Bank v. Gaddis, 208 Neb. 136, 302 N.W.2d 686 (1981); Chaplin v. Sanders, 100 Wash. 2d 853, 676
P.2d 431 (1984).
A claimant's planting of a hedge on the asserted property line of her tract to create a barrier or fence
between that property and the adjacent tract was sufficient to evidence a hostile character of possession,
and the claimant's testimony that she believed the disputed tract was in the deed to her lot and never in-
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3 Am. Jur. 2d Adverse Possession § 45
tended to take anyone else's land did not constitute a judicial admission that she did not possess the re-
quisite intent. Julien v. Baker, 758 S.W.2d 873 (Tex. App. Houston 14th Dis!. 1988), writ denied, (Feb.
22, 1989).
[FN9] Crandall v. Gould, 244 Conn. 583, 711 A.2d 682 (1998).
[FNIO] § 122.
[FNII] Wigfall v. Fobbs, 295 S.C. 59, 367 S.E.2d 156 (1988).
[FNI2] Appalachian Regional Healthcare, Inc. v. Royal Crown Bottling Co., Inc., 824 S.W.2d 878 (Ky.
1992).
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AMJUR ADVERSE § 45
END OF DOCUMENT
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AMJUR ADVERSE § 46
3 Am. Jur. 2d Adverse Possession § 46
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
2. What Constitutes Hostile Possession
Topic Summary Correlation Table References
§ 46. Intent; effect of mistake-Evidence of intent
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£:=65, 85(.5 to 3)
Page 103 of 665
Page I
Even in jurisdictions in which hostile intent is required, the intent with which the occupant has held posses-
sion ordinarily is determined by what the occupant has done in respect to the property.[I] Thus, the intent with
which an occupant has held possession is to be determined from all surrounding circumstances, especially the
occupant's acts.[2]
[FNI] Fredericksen v. Henke, 167 Minn. 356, 209 N.W. 257, 46 A.L.R. 785 (1926); Wanha v. Long,
255 Neb. 849, 587 N.W.2d 531 (1998); Thompson v. Griffiths, 9 Utah 2d 348, 344 P.2d 983 (1959).
[FN2] Boese v. Crane, 182 Kan. 777, 324 P.2d 188 (1958); Hawkins v. Mahoney, 1999 MT 296, 297
Mont. 98, 990 P.2d 776 (1999).
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AMJUR ADVERSE § 46
END OF DOCUMENT
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AMJUR ADVERSE § 47
3 Am. Jur. 2d Adverse Possession § 47
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
3. Permissive Possession
Topic Summary Correlation Table References
§ 47. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>60(2), 67
Trial Strategy
Page I
Proof that use of land was permissive. Permissive Possession or Use of Land, 28 Am. Jur. Proof of Facts 2d
703 §§ 7 et seq.
Forms
Notice by landowner-To prevent acquisition of title by adverse possession. IA Am. Jur. Legal Forms 2d,
Adverse Possession § 11:12.
Notice-Of consent to use land. IB Am. Jur. Pleading and Practice Forms, Adverse Possession § 10.
Instruction to of possession-Effect of consent of owner-Real or personal property. I B
Am. Jur. Pleading and Practice Forms, Adverse Possession § 73.
Adverse possession cannot be pennissive,[l] and permissive possession is not adverse,[2] because per-
missive possession is not considered to be the possession of the occupant, but the possession of the party on
whose pleasure the permissive possession depends.[3] In fact, some jurisdictions define hostile possession
simply as possession without the permission of the true owner.[4]
A claimant's acknowledgment of title in another by an adverse possessor is conclusive evidence of a holding
by permission.[5]
Practice Guide:
The true owner's permission to be on the land, which negates the element of hostility in common law adverse
possession actions, can be either express or implied.[6]
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AMJUR ADVERSE § 47 Page 2
3 Am. Jur. 2d Adverse Possession § 47
If a right to the use or possession of property is conferred by grant, any use or possession that is reasonably
consistent with that grant will be considered penmissive and not adverse.[7] Thus, possession under a license or
an agreement granting the right of occupancy is not adverse; the license or agreement precludes the possibility
of a claim of adverse possession.[8] Even possession under a void license or grant is a penmissive use,[9] and
one who enters on land by the owner's pennission under a promise or expectation that the occupant will be given
the land does not have a hostile holding or possession that will ripen into title.[IO] However, a donee who ac-
cepts a gift of land asserts a property right that is independent of the record owner's, so his or her use is not per-
missive.[II]
Practice Guide:
If an adverse possession claimant's use of the land is actual, open, and exclusive for the required period years,
the nonpermissiveness of the use may be inferred.[12]
[FN I] Wiggins v. Lykes Bros., Inc., 97 So. 2d 273 (Fla. 1957); Thornhill v. Caroline Hunt Trust Estate,
594 So. 2d 1150 (Miss. 1992); Willis v. Holley, 1996 OK 107, 925 P.2d 539 (Okla. 1996).
[FN2] Chevy Chase Land Co. of Montgomery County, Md. v. U.S., 37 Fed. CI. 545 (1997), judgment
affd, 230 F.3d 1375 (Fed. Cir. 1999), amended, (Mar. 27, 2000) and reh'g and reh'g en bane denied,
(Apr. 6,2000) and cert. denied, 531 U.S. 957, 121 S. Ct. 380, 148 L. Ed. 2d 293 (2000) (applying
Maryland law); Howell v. Bradford, 570 So. 2d 643 (Ala. 1990); Vezey v. Green, 35 P.3d 14 (Alaska
2001); Gregoire v. Redwood City Elementary School Dist., 174 Cal. App. 2d 667, 345 P.2d 99 (1st
Dist. 1959); Downing v. Bird, 100 So. 2d 57 (Fla. 1958); Striefel v. Charles-Keyt-Leaman Partnership,
1999 ME III, 733 A.2d 984 (Me. 1999); Warner v. Noble, 286 Mich. 654,282 N.W. 855 (1938); Eld v.
Ellis, 235 S.W.2d 273 (Mo. 1950); Fantasia v. Schmuck, 183 W. Va. 361, 395 S.E.2d 784 (1990); Hov-
endick v. Ruby, 10 P.3d 1119 (Wyo. 2000).
[FN3] Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569
(1957).
[FN4] Cluff v. Bonner County, 121 Idaho 184, 824 P.2d 115 (1992); Mavromoustakos v. Padussis, 112
Md. App. 59, 684 A.2d 51 (1996).
[FN5] §§ 101 et seq.
[FN6] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME III, 733 A.2d 984 (Me. 1999).
[FN7] Kelley v. Anmstrong, 102 Ohio St. 478,132 N.E. 15 (1921).
[FN8] Hungerford v. Hungerford, 234 Md. 338, 199 A.2d 209 (1964); Rude v. Marshall, 54 Mont. 27,
166 P. 298 (1917); Stein v. White, 109 Ohio St. 578, 143 N.E. 124 (1924); Zimmerman v. Newport,
1966 OK 42, 416 P.2d 622 (Okla. 1966); City of Rock Springs v. Stunm, 39 Wyo. 494, 273 P. 908, 97
A.L.R. I (1929).
A claimant did not obtain title to a strip of land through adverse possession, absent clear and convincing
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3 Am. Jur. 2d Adverse Possession § 47
evidence of the adversity of their claim to the strip for the entire statutory period; although the claimant
used the strip by mowing the grass, parking cars, and placing various items on it, the claimant asked for
permission before initially mowing the strip, did not protest when the owner drove a tractor over it, and
conceded that he knew that the strip belonged to the owner and that he never would have used it without
permission. Grace v. Koch, 81 Ohio SI. 3d 577, 692 N.E.2d 1009 (1998).
[FN9] Batts v. Greer, 71 N.M. 454, 379 P.2d 443 (1963).
[FN I 0] Triplett v. Chadwick, 311 S. W.2d 554 (Ky. 1958).
[FNII] Vezey v. Green, 35 P.3d 14 (Alaska 2001).
[FNI2] Totman v. Malloy, 431 Mass. 143,725 N.E.2d 1045 (2000).
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AMJUR ADVERSE § 47
END OF DOCUMENT
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AMJUR ADVERSE § 48
3 Am. Jur. 2d Adverse Possession § 48
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
3. Permissive Possession
Topic Summary Correlation Table References
§ 48. Effect of lengthy or exclusive possession
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=60(2), 67
Trial Strategy
Permissive Possession or Use of Land, 28 Am. Jur. Proof of Facts 2d 703.
Page 107 of 665
Page I
No matter how exclusive or long endured it is, permissive possession can never ripen into title against any-
one.[ I] Thus, occupation or use by acquiescence or permission of the owner cannot ripen into title by adverse
possession, no matter how long it is maintained.[2] However, a possession that is initially permissive may be
changed to a hostile possession if certain requirements are met.[3]
[FNI] Bell v. Pritchard, 273 Ala. 289, 139 So. 2d 596 (1962); Arkansas Commemorative Commission
v. City of Little Rock, 227 Ark. 1085, 303 S. W.2d 569 (1957); Davis v. Newton, 215 Ga. 58, 108
S.E.2d 809 (1959); Bums v. Foster, 348 Mich. 8, 81 N.W.2d 386 (1957); Groth v. Johnson's Dairy
Farm, Inc., 124 N.H. 286, 470 A.2d 399 (1983).
[FN2] Comforto v. Skirke, 289 Mich. 707, 287 N.W. 353 (1939); Thomas v. Morgan, 1925 OK 494,
113 Okla. 212, 240 P. 735 (1925) (overruled on other grounds in part by, Pearson v. Hasty, 1943 OK
179, 192 Okla. 425, 137 P.2d 545, 147 A.L.R. 232 (1943)); Laurance v. Tucker, 160 Or. 474, 85 P.2d
374 (1938).
[FN3] § 50.
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AMJUR ADVERSE § 48
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3 Am. Jur. 2d Adverse Possession § 48
END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 49
3 Am. Jur. 2d Adverse Possession § 49
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
3. Permissive Possession
Topic Summary Correlation Table References
§ 49. Presumption of permissiveness
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 6 7 , 85(1)
Trial Strategy
Permissive Possession or Use of Land, 28 Am. Jur. Proof of Facts 2d 703.
Forms
Page 109 of 665
Page I
Instruction to jury-Burden of proof-To rebut presumption of possession with consent of owner. IB Am.
Jur. Pleading and Practice Forms, Adverse Possession § 76.
Although there is a presumption that one who possesses or uses another's property does so with the owner's
permission, an adverse claimant may rebut this presumption by showing that he or she was not on the owner's
land with permission.[I]
It has been held that there is a presumption of permissiveness for adverse claimants with a familial relation-
ship to the true owner,[2] and that, if a family relationship between claimants is involved, proof of the adverse
possession must be established by stronger evidence than is required in other cases.[3] However, it has also been
held that there is no such presumption; standing alone, a familial relationship neither puts an end to the inquiry
regarding permissive use, nor shifts the burden ofproof.[4]
[FN I] Vezey v. Green, 35 P.3d 14 (Alaska 200 I).
[FN2] Pioneer Mill Co., Ltd. v. Dow, 90 Haw. 289, 978 P.2d 727 (1999), as amended on denial of re-
consideration, (May II, 1999); Ransom v. Bebemitz, 782 A.2d 1155 (VI. 2001).
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AMJUR ADVERSE § 49 Page 2
3 Am. Jur. 2d Adverse Possession § 49
As to the effect of the fact that the parties are strangers to each other, see § 44.
[FN3] Ransom v. Bebernitz, 782 A.2d 1155 (Vt. 2001).
[FN4] Totman v. Malloy, 431 Mass. 143,725 N.E.2d 1045 (2000).
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AMJUR ADVERSE § 49
END OF DOCUMENT
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AMJUR ADVERSE § 50
3 Am. Jur. 2d Adverse Possession § 50
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
3. Pennissive Possession
Topic Summary Correlation Table References
§ 50. Change to hostile possession
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=60 to 64
A.L.R. Library
Page 111 of 665
Page I
Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48
A.L.R. 3d 818 § 9[(b)].
Trial Strategy
Permissive Possession or Use of Land, 28 Am. Jur. Proof of Facts 2d 703.
Possession that is pennissive in its inception may become hostile.[1] However, if the original entry is not
hostile, it does not become so and the statute does not begin to run as against the rightful owner unti I the adverse
claimant disavows the idea of holding for, or in subserviency to, another and actually sets up an exclusive right
in the adverse c1aimant.[2] If the original entry on land is by permission of the owner or under some right or au-
thority derived from the owner, the possession does not become hostile until the permission or authority has
been clearly repudiated by the occupant.[3]
To change the character of the possession from permissive to hostile, the disavowal of the record owner's
title and the assertion of an adverse claim must be shown by some clear, positive, and unequivocal act brought
home to the owner,[4] such as an explicit disclaimer.[5] Otherwise, the possession will not be presumed to be
hostile.[6]
Caution:
To change pennissive possession to adverse possession, there must be either actual notice of the hostile claim, or
acts or declarations of hostility so manifest and notorious that actual notice will be presumed.[7] Under some
statutes, permissive possession cannot be the foundation of a prescription or adverse title until an adverse claim
and actual notice to the other party is made.[8]
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AMJUR ADVERSE § 50 Page 2
3 Am. Jur. 2d Adverse Possession § 50
[FN1] Isham v. Cudlip, 33 Ill. App. 2d 254,179 N.E.2d 25 (2d Dist. 1962).
[FN2] Calhoun v. Smith, 387 So. 2d 821 (Ala. 1980); Lawse v. Glaha, 253 Iowa 1040, 114 N.W.2d 900
(1962); Humphrey v. Harrison, 646 S.W.2d 340 (Ky. 1982); Hewlett v. Henderson, 431 So. 2d 449
(Miss. 1983); Morrison v. Higbee, 204 Mont. 515, 668 P.2d 1025 (1983); Petsch v. Widger, 214 Neb.
390, 335 N.W.2d 254 (1983); Hyson v. Dodge, 198 Va. 792, 96 S.E.2d 792 (1957); Lindokken v.
Paulson, 224 Wis. 470, 272 N.W. 453, 110 A.L.R. 910 (1937); Coumas v. Transcontinental Garage, 68
Wyo. 99, 230 P.2d 748, 41 A.L.R.2d 539 (1951).
[FN3] Calhoun v. Smith, 387 So. 2d 821 (Ala. 1980); Walter v. Jones, 15 Ill. 2d 220, 154 N.E.2d 250
(1958); Hinkley v. State, 234 N.Y. 309,137 N.E. 599 (1922).
[FN4] Blalock v. Conzelman, 751 So. 2d 2 (Ala. 1999); Anderson v. Walker, 228 Ark. 113,306 S.W.2d
318 (1957); Lovejoy v. School Dis!. No. 46 of Sedgwick County, 129 Colo. 306,269 P.2d 1067 (1954);
Mullan v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323 (1931); Lawse v. Glaha, 253 Iowa 1040,
114 N.W.2d 900 (1962); Johnson v. Raddohl, 226 Minn. 343, 32 N.W.2d 860 (1948); Rice v. Pritchard,
611 So. 2d 869 (Miss. 1992); Imperial Service Corp. v. Phipps, 205 Neb. 622, 288 N.W.2d 749 (1980);
Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956); Killough v. Hinds, 161 Tex. 178, 338
S. W.2d 707 (1960); Kimball v. Turner, 993 P.2d 303 (Wyo. 1999).
[FN5] Young Kee Kim v. Douval Corp., 259 Va. 752, 529 S.E.2d 92 (2000).
[FN6] Stewart v. Childress, 269 Ala. 87, III So. 2d 8 (1959).
[FN7] Moss v. Woodrow Reynolds and Son Timber Co., Inc., 592 So. 2d 1029 (Ala. 1992); Estate of
Wells v. Estate of Smith, 576 A.2d 707 (D.C. 1990); Pioneer Mill Co., Ltd. v. Dow, 90 Haw. 289, 978
P.2d 727 (1999), as amended on denial of reconsideration, (May II, 1999); McDermott v. Boman, 165
Neb. 429, 86 N.W.2d 62 (1957); Hinman v. Barnes, 146 Ohio S!. 497, 32 Ohio Op. 564, 66 N.E.2d 911
(1946); Great Southern Life Ins. Co. v. Dodson, 155 S.W.2d 379 (Tex. Civ. App. Amarillo 1941); Gray
v. Fitzhugh, 576 P.2d 88 (Wyo. 1978).
[FN8] Proctor v. Heirs of Jernigan, 273 Ga. 29, 538 S.E.2d 36 (2000).
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END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 51
3 Am. Jur. 2d Adverse Possession § 51
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
3. Permissive Possession
Topic Summary Correlation Table References
§ 51. Change to hostile possession-Evidence of change to hostile use
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=60 to 64, 85(.5 to 3)
Trial Strategy
Permissive Possession or Use of Land, 28 Am. Jur. Proof of Facts 2d 703.
Page 113 of 665
Page I
In determining whether a permissive use has been changed into a hostile use, the evidence must be strictly
construed against the adverse user,[I] and the burden is on the claimant to prove that he or she changed the char-
acter of the possession.[2]
For the purpose of changing permissive possession to hostile possession, mere possession or ordinary acts
of ownership that are consistent with the permission are not enough to provide notice of the hostile claim.[3]
CUMULA TIVE SUPPLEMENT
Cases:
Even if neighbor possessed property on his side of fence in the mistaken belief that he owned it, neighbor
was entitled to the presumption of adverse possession and landowner had the burden to prove that neighbor's
possession of the property was not hostile, in trial of adverse possession counterclaim asserted by neighbor after
landowner brought action seeking an injunction to prevent neighbor from interfering with landowner's efforts to
relocate fence. Cook v. Eddy, 2008 WY III, 193 P.3d 705 (Wyo. 2008).
lEND OF SUPPLEMENTI
[FN I] Mielke v. Daly Ditches lrr. Dist., 225 Mont. 172,731 P.2d 927 (1987).
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AMJUR ADVERSE § 51 Page 2
3 Am. Jur. 2d Adverse Possession § 51
[FN2] Pioneer Mill Co., Ltd. v. Dow, 90 Haw. 289, 978 P.2d 727 (1999), as amended on denial of re-
consideration, (May 11, 1999); Edgell v. Canning, 1999 UT 21, 976 P.2d 1193 (Utah 1999).
[FN3] Blalock v. Conzelman, 751 So. 2d 2 (Ala. 1999); Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d
177 (1956).
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AMJUR ADVERSE § 51
END OF DOCUMENT
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AMJUR ADVERSE § 52
3 Am. Jur. 2d Adverse Possession § 52
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
3. Pennissive Possession
Topic Summary Correlation Table References
§ 52. Possession after divestment of title
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 6 7
Page 115 of665
Page 1
The continued possession of land after a judgment divesting the one in possession of title and vesting it in
another is permissive, and not adverse, until notice of a hostile claim is brought home to the prevailing party.[1]
[FNI] Shepherd v. Lyle, 1964 OK 204, 395 P.2d 641 (Okla. 1964); Green v. Vance, 158 Tex. 550, 314
S. W.2d 794 (1958).
Because a remote grantor of the plaintiff obtained a judgment in trespass to try title against the same de-
fendants covering the same property, the defendants' continued possession after entry of the prior judg-
ment was pennissive and not adverse to the title of the record owner unless it could be shown that the
record owner had knowledge or record notice that the permissive relationship had been repudiated.
Sims v. Cage, 523 S.W.2d 486 (Tex. Civ. App. Houston 1st Dist. 1975), writ refused n.r.e.
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rights reserved.
AMJUR ADVERSE § 52
END OF DOCUMENT
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Westlaw
AMJUR ADVERSE § 53
3 Am. Jur. 2d Adverse Possession § 53
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
4. Possession under Mistake or Ignorance as to a Boundary
Topic Summary Correlation Table References
§ 53. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>65(.5)
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 40, 41.
Page I
Adverse possession involving ignorance or mistake as to boundaries-modem views, 80 A.L.R. 2d 1171 §§
2 to 8.
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353 § 9.
Forms
Cross-complaint-Boundary line dispute-Mistake by common grantor in fencing adjoining parcels-To
establish title by adverse possession-Additional count for trespass and waste. I BAm. Jur. Pleading and Prac-
tice Forms, Adverse Possession § 64.
Answer-Title by adverse possession-Boundary line fenced by common grant-
or-Improvements-Payment of taxes. IB Am. Jur. Pleading and Practice Forms, Adverse Possession § 65.
To possess the requisite intent to adversely obtain property, it is not necessary that the possessor be correct
in a belief as to the true boundary lines.[1] The necessary element of hostile possession in the acquisition of title
by adverse possession may exist even if possession was taken by mistake.[2] Possession is not the less hostile
because the claimant takes possession of the land innocently and through mistake or ignorance as to ownership
or as to boundary lines; it is visible and adverse possession, with the intention to possess land occupied under a
belief that it is the possessor's own, that constitutes its hostile character, and not the remote view or belief of the
possessor.[3]
In some jurisdictions, occupancy to a visible and ascertained boundary for the statutory period is the con-
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3 Am. Jur. 2d Adverse Possession § 53
trolling feature in detenmining hostility in mistaken boundary-line cases.[4] Thus, an open, notorious, and hostile
possession of property for the statutory limitation period is sufficient for the acquisition of title by adverse pos-
session, and the fact that the possession was taken under mistake or ignorance as to boundary lines is immateri-
al.[5]In other words, the mistake can not be pleaded in avoidance of the legal effect of the possession.[6]
CUMULATIVE SUPPLEMENT
Cases:
Fact that, at time of acquiring land, adverse possession claimants had been mistaken in their subjective be-
lief that stone wall was the boundary of their property did not show that their possession was not adverse, as an
element of their adverse possession claim to land up to wall; claimants' subjective belief was immaterial to ele-
ment of adversity. Mastroianni v. Wercinski, 158 N.H. 380, 965 A.2d 1139 (2009).
"Doctrine of acquiescence" allows a property owner to acquire neighboring property due to an honest mis-
take over the location of the boundary line. Brown v. Brodell, 2008 ND 183,756 N.W.2d 779 (N.D. 2008).
lEND OF SUPPLEMENT I
[FNI] Scarbrough v. Smith, 445 So. 2d 553 (Ala. 1984); McMullen v. Dowley, 483 A.2d 698 (Me. 1984).
[FN2] Bussey v. Bussey, 403 So. 2d 907 (Ala. 1981); Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984);
Gilardi v. Hallam, 30 Cal. 3d 317, 178 Cal. Rptr. 624, 636 P.2d 588 (1981); Yatczak v. Cloon, 313
Mich. 584,22 N.W.2d 112 (1946); Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E. 239 (1920); Norgard v.
Busher, 220 Or. 297, 349 P.2d 490, 80 A.L.R.2d 1161 (1960); City of Deadwood v. Summit, Inc., 2000
SD 29,607 N.W.2d 22 (S.D. 2000); Liberto v. Steele, 188 Tenn. 529,221 S.W.2d 701 (1949); Great
Southern Life Ins. Co. v. Dodson, 155 S.W.2d 379 (Tex. Civ. App. Amarillo 1941).
[FN3] Rudolph v. Peters, 35 App. D.C. 438, Am. Ann. Cas. 1912A, 446 (App. D.C. 1910); Mannillo v.
Gorski, 54 N.J. 378, 255 A.2d 258 (1969); Fespenman v. Grier, 294 Ala. 163,313 So. 2d 525 (1975);
Smart v. Murphy, 200 Ark. 406, 139 S.W.2d 33 (1940); Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d
900 (1948); Krause v. Nolte, 217 111. 298, 75 N.E. 362 (1905) (in which a line was mistakenly believed
to be the true line); McMullen v. Dowley, 483 A.2d 698 (Me. 1984); Boutin v. Perreault, 343 Mass.
329, 178 N.E.2d 482 (1961); Fredericksen v. Henke, 167 Minn. 356, 209 N.W. 257, 46 A.L.R. 785
(1926); Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998); Belotti v. Bickhardt, 228 N.Y. 296, 127
N.E. 239 (1920); Norgard v. Busher, 220 Or. 297, 349 P.2d 490, 80 A.L.R.2d 1161 (1960).
As to the controlling aspect of intention, see § 46.
[FN4] Vennard v. Morrison, 3 Conn. Cir. Ct. 120,209 A.2d 202 (App. Div. 1964); Cassidy v. Lenahan,
294 III. 503,128 N.E. 544 (1920); Lyon v. Parkinson, 330 Mass. 374,113 N.E.2d 861 (1953); Vrana v.
Stuart, 169 Neb. 430, 99 N.W.2d 770 (1959); Smith v. Pettijohn, 1961 OK 246, 366 P.2d 633 (Okla.
1961); Adams v. Tamaqua Underwear Co., 105 Pa. Super. 339,161 A. 416 (1932).
[FN5] Fesperman v. Grier, 294 Ala. 163,313 So. 2d 525 (1975); Geronimo Hotel, Inc. v. City of Tuc-
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son, 121 Ariz. 446, 591 P.2d 72 (Ct. App. Div. 2 1978); Burton v. Griffith, 226 Ark. 641,291 S.W.2d
516 (1956); Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948); Vennard v. Morrison, 3 Conn. Cir.
Ct. 120,209 A.2d 202 (App. Div. 1964); Edwards v. Fleming, 83 Kan. 653, 112 P. 836 (1911); Yatczak
v. Cloon, 313 Mich. 584, 22 N.W.2d 112 (1946); Walters v. Tucker, 308 S.W.2d 673 (Mo. 1957);
Thibault v. Flynn, 133 Mont. 461, 325 P.2d 914 (1958); Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E.
239 (1920); Wilson v. Moore, 1959 OK 6, 335 P.2d 1085 (Okla. 1959); Norgard v. Busher, 220 Or.
297,349 P.2d 490,80 A.L.R.2d 1161 (1960); Schiro v. Oriental Realty Co., 272 Wis. 537, 76 N.W.2d
355,73 A.L.R.2d 1368 (1956).
[FN6] Kendall v. Selvaggio, 413 Mass. 619, 602 N.E.2d 206 (1992); Rude v. Marshall, 54 Mont. 27,
166 P. 298 (1917); Johnson v. Whelan, 1940 OK 68,186 Okla. 511, 98 P.2d 1103 (1940).
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rights reserved.
AMJUR ADVERSE § 53
END OF DOCUMENT
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AMJUR ADVERSE § 54
3 Am. Jur. 2d Adverse Possession § 54
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
4. Possession under Mistake or Ignorance as to a Boundary
Topic Summary Correlation Table References
§ 54. Intention as controlling
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>65(.5)
A.L.R. Library
Page 119 of 665
Page I
Adverse possession involving ignorance or mistake as to boundaries-modern views, 80 ALR. 2d 1171 §§
3 to 6.
The rule that the intention with which possession is taken and maintained is the controlling factor in detenn-
ining its adverse character[l] is applied in a number of jurisdictions in determining whether possession through
ignorance or mistake beyond the true boundary line was adverse.[2] The true test is whether, when possession
was acquired, the claimant intended to hold it against all persons; the intention is the test, and not the mistake.[3
] If one occupies land intending to occupy and own it, the occupancy is hostile, and the occupant may have the
required intent, even though he or she is mistaken as to the facts of legal ownership.[4] In other words, the intent
with which possession is held, rather than an intention to hold in accordance with a claimant's deed, is con-
trolling;[5] that one claiming title by adverse possession never intended to claim more land than is called for in a
deed is not a controlling factor.[6]
Observation:
If a claimant takes possession of land by mistake and holds adversely, claiming title, for the statutory period, the
law is not concerned with what might have been the claimant's intention had the claimant known he had no title
to the land before possession ripened into title; the question is what was the claimant's intention during the peri-
od of holding.[7]
[FN I] § 45.
[FN2] West v. Tilley, 33 A.D.2d 228, 306 N.Y.S.2d 591 (4th Dep't 1970); Rountree v. Jackson, 242
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Ala. 190,4 So. 2d 743 (1941); Simpson v. Goering, 161 Kan. 558, 170 P.2d 831 (1946); Krupp v.
Whelan, 310 Ky. 670,220 S.W.2d 956 (1949); Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998).
[FN3] Davis v. Miller, 352 So. 2d 1357 (Ala. 1977); Mesnick v. Caton, 183 Cal. App. 3d 1248, 228
Cal. Rptr. 779 (2d Dis!. 1986); Goodno v. South Florida Farms Co., 95 Fla. 90, 116 So. 23 (1928); Fort
Wayne Smelting & Refining Works v. City of Fort Wayne, 214 Ind. 454, [4 N.E.2d 556 ([938); Boese
V. Crane, 182 Kan. 777, 324 P.2d 188 (1958); Mooney V. Canter, 311 S.W.2d I (Mo. 1958).
[FN4] Sims V. Vandiver, 504 So. 2d 250 (Ala. 1987); Marvel v. Barley Mill Road Homes, 34 Del. Ch.
417, 104 A.2d 908 (1954); Mooney V. Canter, 3[ [ S.W.2d [ (Mo. 1958); Krosmico V. Pettit, 1998 OK
90,968 P.2d 345 (Okla. 1998); City of Deadwood V. Summit, [nc., 2000 SD 29, 607 N.W.2d 22 (S.D.
2000); Selman V. Roberts, 185 W. Va. 80, 404 S.E.2d 771 (199[).
[FN5] Vrana V. Stuart, 169 Neb. 430, 99 N.W.2d 770 ([959).
[FN6] Vrana V. Stuart, 169 Neb. 430, 99 N.W.2d 770 (1959).
[FN7] Rountree V. Jackson, 242 Ala. 190,4 So. 2d 743 (I94[); Goodno V. South Florida Farms Co., 95
Fla. 90, 116 So. 23 (1928); Mooney V. Canter, 311 S. W.2d 1 (Mo. 1958).
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rights reserved.
AMJUR ADVERSE § 54
END OF DOCUMENT
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Westiaw.
AMJUR ADVERSE § 55
3 Am. Jur. 2d Adverse Possession § 55
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
4. Possession under Mistake or Ignorance as to a Boundary
Topic Summary Correlation Table References
§ 55, Actual possession to boundary
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>66(1), (2)
A,L,R, Library
Page 121 of665
Page I
Adverse possession involving ignorance or mistake as to boundaries-modem views, 80 A.L.R. 2d 1171 § 4.
If a landowner, in ignorance of actual boundaries, takes and holds possession by mistake up to a certain line
beyond the boundary limits, on the claim and in the belief that it is the true line, with the intention to claim title,
and if necessary to acquire title by possession up to that line, that possession, having the requisite duration and
continuity, will ripen into title.[1] The mere fact that the possession originated in a mistake or in ignorance as to
the location of the true boundary line will not prevent the running of the statute of limitations, and the posses-
sion will be held to be hostile and to vest the title in the claimant under the statute,[2] even if the land was not
enclosed.[3] If the occupant of the disputed area is under a mistaken belief that it is included in the description
in the deed-a state of mind sometimes described as pure mistake to distinguish it from the cases of conscious
doubt-then the possession is hostile.[4]
Even if the claimant, on occupancy under a mistake as to the true boundary, did not intend to take land !Tom
the true owner and did not intend to occupy and possess land to which the claimant had no record title, the pos-
session may be hostile if the claimant intended to occupy and did occupy as the owner.[5]
CUMULATIVE SUPPLEMENT
Cases:
Where there is no written evidence of title and adverse possession is claimed by virtue of possession for 20
years, prescription will not extend beyond actual "possessio pedis" which means area of actual possession; actu-
al possession may be evidenced by enclosure, cultivation, or any use and occupation which is so notorious as to
attract attention of every adverse claimant and so exclusive as to prevent actual occupation by another. MEA
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Family Investments, LP v. Adams, 284 Ga. 407, 667 S.E.2d 609 (2008).
The doctrine of adverse possession protects one who has honestly entered and held possession in the belief
that the land was his own, as well as one who knowingly appropriates the land of others for the purpose of ac-
quiring title. Evanich v. Bridge, 170 Ohio App. 3d 653, 2007-0hio-1349, 868 N.E.2d 747 (9th Dis!. Lorain
County 2007), appeal allowed, 114 Ohio S!. 3d 1507, 2007-0hio-4285, 872 N.E.2d 950 (2007).
Mistake between road owner and adjacent landowner as to the true boundary was of no consequence to road
owner's claim of adverse possession; road owner and predecessors exercised exclusive, actual, adverse, continu-
ous, and open and notorious possession of the actual area making up the service road for more than twenty
years. Cumulus Broadcasting, Inc. v. Shim, 226 S. W.3d 366 (Tenn. 2007).
lEND OF SUPPLEMENTI
[FN I] Kimble v. Southern Ready Mix, Inc., 480 So. 2d 1199 (Ala. 1985); Burton v. Griffith, 226 Ark.
641,291 S.W.2d 516 (1956); Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948); Sieck v. Ander-
son, 231 Iowa 490, 1 N.W.2d 647 (1942); Kinder v. Ramey, 267 Ky. 312, 102 S.W.2d 32 (1937);
Thibault v. Flynn, 133 Mont. 461, 325 P.2d 914 (1958); Thornburg v. Haecker, 243 Neb. 693, 502
N.W.2d 434 (1993); Wilson v. Moore, 1959 OK 6, 335 P.2d 1085 (Okla. 1959); Norgard v. Busher, 220
Or. 297, 349 P.2d 490,80 A.L.R.2d 1161 (1960); Elder v. Smith, 196 W. Va. 660,474 S.E.2d 590 (1996).
Evidence that a parcel of land was within the fence line of the claimants' property, that they leased the
property to others for ranch purposes, that they entered into an oil and gas lease with respect to the
property, that they themselves conducted ranching operations on the property, that they thought they did
possess the property, and that they in fact intended to possess up to the fence boundary, was sufficient
to satis/)' the requirement of adverse possession. Near v. Casto, 613 P.2d 577 (Wyo. 1980).
[FN2] Gary v. Dane, 411 F.2d 711 (D.C. Cir. 1969); Lollar v. Appleby, 213 Ark. 424, 210 S.W.2d 900
(1948); Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417,104 A.2d 908 (1954); Craig v. Paulk, 162
Kan. 280, 176 P.2d 529 (1947); Fredericksen v. Henke, 167 Minn. 356,209 N.W. 257, 46 A.L.R. 785
(1926).
Because a driveway that encroached on the plaintiffs' land was occupied, used, and maintained by the
defendant openly, notoriously, and exclusively for the statutory period, the defendant acquired title by
adverse possession although the right was claimed because of a mistaken belief in the location of the
boundary line. Boutin v. Perreault, 343 Mass. 329, 178 N.E.2d 482 (1961).
[FN3] Hallowell v. Borchers, 150 Neb. 322, 34 N. W.2d 404 (1948).
[FN4] Norgard v. Busher, 220 Or. 297, 349 P.2d 490,80 A.L.R.2d 1161 (1960).
[FN5] Walters v. Tucker, 308 S.W.2d 673 (Mo. 1957).
Evidence that the appellees occupied a dwelling and used and improved a garage and driveway was suf-
ficient to demonstrate an intent to claim the land, even though their possession was without intent to
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possess the land of another. Penn Cent. Transp. Co. v. Martin, 170 Ind. App. 519, 353 N.E.2d 474 (3d
Dist. 1976).
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rights reserved.
AMJUR ADVERSE § 55
END OF DOCUMENT
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Westlaw
AMJUR ADVERSE § 56
3 Am. Jur. 2d Adverse Possession § 56
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
4. Possession under Mistake or Ignorance as to a Boundary
Topic Summary Correlation Table References
§ 56. Actual possession to boundary-Intent to claim to the true boundary
West's Key Number Digest
West's Key Number Digest, Adverse Possession 0(:;:;;;;>65(2), 66(1), (2)
A.L.R. Library
Page 124 of 665
Page I
Adverse possession involving ignorance or mistake as to boundaries-modem views, 80 A.L.R. 2d 1171 §§
3,4.
It has been held that, if a party, through ignorance, inadvertence, or mistake, occupies up to a given line
beyond that party's actual boundary, believing it to be the true line, but not having an intention to claim title to
that extent if it should be ascertained that the line is on a neighbor's land, an indispensable element of adverse
possession is wanting; the intention shown is not absolute, but provisional, and consequently, the possession is
not hostile.[ I] Thus, if the possession is up to a fixed boundary under a mistake as to the true line and the inten-
tion is to hold only to the true line, the possession is not hostile and will not ripen into title.[2] Also, if an occu-
pant of land is in doubt as to the location of the true boundary line, it is reasonable for the court to inquire as to
the occupant's state of mind in occupying the land in dispute. If, having that doubt, the occupant intends to hold
the disputed area only if that area is included in the land described in the deed, then it is reasonable to say that
the requisite hostility is lacking.[3]
However, it has also been held that the intent required to support an adverse possession claim, even though
mistaken, is sufficient if the claimant occupies to the wrong line believing it to be true, even if he or she does
not intend to claim more than that described in the deed.[4]
[FNI] Rudolph v. Peters, 35 App. D.C. 438, Am. Ann. Cas. 1912A, 446 (App. D.C. 1910); Burton v.
Griffith, 226 Ark. 641,291 S.W.2d 516 (1956); City of Bonner Springs v. Clark, 3 Kan. App. 2d 8, 588
P.2d 477 (1978); Wilson v. Shepherd, 244 Ky. 225, 50 S.W.2d 540 (1932); Cates v. Smith, 636 A.2d
986 (Me. 1994); Rude v. Marshall, 54 Mont. 27, 166 P. 298 (1917); Norgard v. Busher, 220 Or. 297,
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349 P.2d 490, 80 A.L.R.2d 1161 (1960); Schaubuch v. Dillemuth, 108 Va. 86, 60 S.E. 745 (1908); Mc-
Cormick v. Sorenson, 58 Wash. 107, 107 P. 1055 (1910); Beltack v. Conachen, 235 Wis. 559, 294
N.W. 57 (1940).
[FN2] Tanner v. Dobbins, 255 Ala. 671, 53 So. 2d 549 (1951); Rye v. Baumann, 231 Ark. 278, 329
S.W.2d 161 (1959); Craig v. Paulk, 162 Kan. 280, 176 P.2d 529 (1947); Warner v. Noble, 286 Mich.
654,282 N.W. 855 (1938); Ward v. Rodriguez, 43 N.M. 191,88 P.2d 277 (1939).
[FN3] Norgard v. Busher, 220 Or. 297, 349 P.2d 490, 80 A.L.R.2d 1161 (1960).
[FN4] Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998).
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rights reserved.
AMJUR ADVERSE § 56
END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 57
3 Am. Jur. 2d Adverse Possession § 57
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
4. Possession under Mistake or Ignorance as to a Boundary
Topic Summary Correlation Table References
§ 57. Visible boundary line
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=66(1)
A.L.R. Library
Fence as factor in fixing location of boundary line-modern cases, 7 A.L.R. 4th 53 § 13.
Page 126 of 665
Page I
Adverse possession involving ignorance or mistake as to boundaries-modern views, 80 A.L.R. 2d 1171 §§
4 to 6.
If an intention is manifested to claim title to a visible, fixed, and ascertained boundary line in all events, the
possession is hostile even if it is erroneously assumed to be the true line and the possession is held and the claim
made because of the mistake as to the location of the boundary.[I] In other words, if the claim is to a visible
boundary in all events, whether it is the true line or not, the possession is hostile.[2] In other words, if an occu-
pant claims land up to an established and visible line, such as a fence, the possession may be hostile even if the
occupant claims more than is owned and claims by mistake of fact; although the line as marked by the fence is
erroneous in fact as a boundary line, the possession up to the fence is hostile if the occupant believes it to be the
true boundary line and intends to hold and claim the land to it.[3]
However, if the possession of real property, even though maintained up to certain fixed and visible lines, is
without any intention to claim title to the land, it will not be considered hostile for the purposes of an adverse
possession c1aim.[4]
[FNI] Davis v. Miller, 352 So. 2d 1357 (Ala. 1977); Higginbotham v. Kuehn, 102 Ariz. 37, 424 P.2d
165 (1967); Moss v. O'Brien, 165 Colo. 93,437 P.2d 348 (1968); Sieck v. Anderson, 231 Iowa 490, I
N.W.2d 647 (1942); Gregory v. Thorrez, 277 Mich. 197,269 N.W. 142 (1936); Dawson v. Abbott, 184
N.C. 192, 114 S.E. 15 (1922); Anthony v. Searle, 681 A.2d 892 (R.l. 1996); Christian v. Bulbeek, 120
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3 Am. Jur. 2d Adverse Possession § 57
Va. 74, 90 S.E. 661 (1916).
[FN2] Gary v. Dane, 411 F.2d 711 (D.C. Cir. 1969); Johnson v. Thomas, 23 App. D.C. 141 (App. D.C.
1904); Davis v. Miller, 352 So. 2d 1357 (Ala. 1977); Rye v. Baumann, 231 Ark. 278, 329 S.W.2d 161
(1959); Surfside Hotel v. W. E. Moorehead Co., 149 Fla. 397, 5 So. 2d 857 (1942); Krause v. Nolte,
217111.298,75 N.E. 362 (1905); Wagner v. Thompson, 163 Kan. 662,186 P.2d 278 (1947); Mudwilder
v. Claxton, 301 S.W.2d 3 (Ky. 1957); Consolidated Mechanical Contractors, Inc. v. Ball, 263 Md. 328,
283 A.2d 154 (1971); Walker v. Bowen, 333 Mich. 13, 52 N.W.2d 574 (1952); Crane v. Loy, 436
S.W.2d 739 (Mo. 1968); Carnahan v. Cummings, 105 Neb. 337, 180 N.W. 558, 12 A.L.R. 1455 (1920);
Major v. Meyers, III S.W.2d 1184 (Tex. Civ. App. EI Paso 1937); McCormick v. Sorenson, 58 Wash.
107, 107 P. 1055 (1910); Schiro v. Oriental Realty Co., 272 Wis. 537, 76 N.W.2d 355, 73 A.L.R.2d
1368 (1956).
[FN3] Hagood v. Hensley, 371 So. 2d 421 (Ala. 1979); Peoples v. Hagaman, 31 Tenn. App. 398, 215
S.W.2d 827 (1948).
[FN4] Spradling v. May, 259 Ala. 10, 65 So. 2d 494 (1953); Swim v. Langland, 234 Iowa 46, II
N.W.2d 713 (1943).
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AMJUR ADVERSE § 58
3 Am. Jur. 2d Adverse Possession § 58
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
4. Possession under Mistake or Ignorance as to a Boundary
Topic Summary Correlation Table References
§ 58. Agreement as to boundary line
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£:=66(1), (2)
A,L.R. Library
Page 128 of 665
Page I
Rights derived from use by adjoining owners for driveway, or other common purpose, of strip of land lying
over and along their boundary, 27 A.L.R. 2d 332 §§ 6 to 8.
If a boundary line is disputed, the adjacent landowners may establish a final and decisive boundary between
their lands by written or parol agreement.[l] If adjoining owners or claimants of land have orally agreed on a
boundary line for a sufficient length of time to warrant the inference of mutual assent, the line so fixed becomes
binding on the parties, even ifit is not the true line, and even if the statute of limitations has not run.[2]
While government subsection lines remain fixed and cannot be relocated by conduct of adjoining landown-
ers, a boundary line between adjacent landowners may be changed by adverse possession based on such coo-
duct.[3]
If adjoining landowners orally agree on a boundary line and each occupies up to its location, the possession
is presumed to be hostile on the part of the occupant who lacks title.[4]
[FNI] 12 Am. Jur. 2d, Boundaries §§ 75 et seq.
[FN2]12 Am. Jur. 2d, Boundaries §§ 77 et seq.
[FN3] Rutland v. Georgia Kraft Co., Inc., 387 So. 2d 836 (Ala. 1980).
[FN4] Salter v. Cobb, 264 Ala. 609, 88 So. 2d 845 (1956).
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3 Am. Jur. 2d Adverse Possession § 58
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AMJUR ADVERSE § 59
3 Am. Jur. 2d Adverse Possession § 59
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
4. Possession under Mistake or [gnorance as to a Boundary
Topic Summary Correlation Table References
§ 59. Presence of a boundary fence
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=66(1), (2)
A.L.R. Library
Fence as factor in fixing location of boundary line-modem cases, 7 A.L.R. 4th 53.
Page 130 of 665
Page I
If a fence is constructed as a boundary line fence between two properties, and if the parties concerned claim
ownership of the land to the fence during the statutory period without interruption in their possession or control
during that time, they will acquire title by adverse possession to any land that was improperly enclosed with or
added to the land they owned at the time the fence was constructed.[1] Long recognition and acquiescence by
adjoining landowners in a boundary fence raises a presumption that the land was held adversely up to the fence.[
2] However, the placement of a fence within one's boundary line does not lead to relinquishment of the lands
outside the fence, without an additional showing that those lands outside the fence have been used by the neigh·
boring landowner under a claim of ownership for the requisite period oftime.[3]
Ifthe fence was used as a boundary, it is immaterial who constructed it.[4]
[FNI] Salter v. Cobb, 264 Ala. 609, 88 So. 2d 845 (1956); Konop v. Knobel, 167 Neb. 318, 92 N.W.2d
714 (1958).
Adverse possession was established because all the parties treated a rock wall, commonly used in the
locality as a boundary, as the boundary for 28 years and because the possessors used the strip of land as
part of their property as a pasture for farm animals and a garden, and picked flowers, cut trees, and used
a bam in the area for housing livestock. Nevin v. Smith, 283 Or. 347, 584 P.2d 251 (1978).
[FN2] Hobson v. Miller, 64 N.M. 215, 326 P.2d 1095 (1958); Hovendick v. Ruby, 10 P.3d 1119 (Wyo.
2000).
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AMJUR ADVERSE § 59 Page 2
3 Am. Jur. 2d Adverse Possession § 59
[FN3] Gustin v. Scheele, 250 Neb. 269, 549 N.W.2d 135 (1996).
[FN4] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417,104 A.2d 908 (1954).
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AMJUR ADVERSE § 60
3 Am. Jur. 2d Adverse Possession § 60
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
4. Possession under Mistake or Ignorance as to a Boundary
Topic Summary Correlation Table References
§ 60. Encroachment of a building or other structure
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=66(l), (2)
A.L.R. Library
Adverse possession based on encroachment of building or other structure, 2 A.L.R. 3d 1005 §§ 3, 4.
Page I
One who remains in continuous, open, and exclusive possession of a building or other structure of a per-
manent nature that encroaches beyond the boundary line, during the statutory period in which actions to recover
possession of real property may be maintained, acquires title by adverse possession to that portion of the adjoin·
ing property covered by the structure, even if it was erected in ignorance of the location of the true boundary
line, and supposedly on land rightfully owned by the builder.[I] However, an encroachment on land by permis-
sion of the owner cannot be held to have ripened into title if there was no evidence that the party responsible for
the encroachment gave notice at any time of a claim adverse to the owner.[2]
To acquire title by adverse possession by this means to a strip of adjoining property, the building or other
structure must be of a substantial and pennanent nature, sufficient to call the attention of the owner of record to
the encroachmenl.[3]
Although one may acquire title to that portion of an adjoining lot on which a building is erected and main-
tained for the statutory period, title is not obtained to that part of the adjoining lot not covered by the building,
such as a portion of a lot maintained as a lawn[4] or a portion of a lot that would have been covered had the
building been extended the full length of the 101.[5]
The claimant must occupy with the intent to claim title to all land covered by the encroachment to acquire
title by adverse possession.[6] If the improvements are located beyond what is supposed to be the true line, and
the party making them intends to claim only to the true line, to be thereafter ascertained, whenever and wherever
it might be located, the possession is not adverse.[7]
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AMJUR ADVERSE § 60 Page 2
3 Am. JUL 2d Adverse Possession § 60
[FNI] Rudolph v. Peters, 35 App. D.C. 438, Am. Ann. Cas. 1912A, 446 (App. D.C. 1910); Carter v.
Roberson, 214 Ark. 750, 217 S.W.2d 846 (1949); La Chance v. Rubashe, 301 Mass. 488, 17 N.E.2d 685
(1938); Romans v. Nadler, 217 Minn. 174, 14 N.W.2d 482 (1944); McDaniels v. Cutburth, 270 S.W.
353 (Mo. 1925); Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E. 239 (1920); State Bank & Trust of Ken-
mare v. Brekke, 1999 ND 212, 602 N.W.2d 681 (N.D. 1999); Moore v. Chapman, 1959 OK 185, 344
P.2d 1100 (Okla. 1959); McConmick v. Sorenson, 58 Wash. 107, 107 P. 1055 (1910); City of Rock
Springs v. Stunm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. I (1929); Scarcella v. Ascolese, 135 N.J. Eq.
283,38 A.2d 194 (Ch. 1944).
As to encroachment ripening into title by adverse possession, generally, see 1 Am. JUT. 2d, Adjoining
Landowners § 127.
[FN2] McClung v. Schulte, 214 Ga. 426, 105 S.E.2d 225 (1958); Independent School Dis!. No. 40,
Nowata County v. Allen, 1968 OK 141,446 P.2d 282 (Okla. 1968).
As to penmissive possession, see §§ 47 et seq.
[FN3] Edie v. Coleman, 235 Mo. App. 1289, 141 S.W.2d 238 (1940), cert. quashed, 348 Mo. 119, 152
S.W.2d 174 (1941); Morgan v. Jenson, 47 N.D. 137, 181 N.W. 89 (1921).
[FN4] McCarty v. Sheets, 423 N.E.2d 297 (Ind. 1981).
[FN5] Gloyd v. Franck, 248 Mo. 468, 154 S.W. 744 (1912); Scarcella v. Ascolese, 135 N.J. Eq. 283, 38
A.2d 194 (Ch. 1944).
[FN6] Janke v. McMahon, 21 Cal. App. 781, 133 P. 21 (3d Dis!. 1913); Boese v. Crane, 182 Kan. 777,
324 P.2d 188 (1958); Village of Red Jacket v. Pinton, 126 Mich. 194, 85 N.W. 567 (1901); Koch v.
Gordon, 231 Mo. 645,133 S.W. 609 (1910); Fuller v. Jackson, 62 S.W. 274 (Tenn. Ch. App. 1901).
[FN7] Diers v. Peterson, 290 Mo. 249, 234 S.W. 792 (1921); Edie v. Coleman, 235 Mo. App. 1289, 141
S.W.2d 238 (1940), cert. quashed, 348 Mo. 119, 152 S.W.2d 174 (1941).
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AMJUR ADVERSE § 61
3 Am. Jur. 2d Adverse Possession § 61
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
D. Hostile Character of Possession
4. Possession under Mistake or Ignorance as to a Boundary
Topic Summary Correlation Table References
§ 61. Projection or inclination of a wall
West's Key Number Digest
West's Key Number Digest, Adverse Possession <C=66(1), (2)
A.L.R. Library
Page 134 of 665
Page I
Adverse possession based on encroachment of building or other structure, 2 A.L.R. 3d 1005 §§ 5, 6.
It has been held that title to land by adverse possession may be based on the fact that the wall of a building
belonging to the one claiming by adverse possession leans over the land claimed by adverse possession.[I]
However, it has also been held that the mere tipping of a wall of a building so as to project into the airspace
above the adjoining lot does not interrupt the continuity of possession of the owner of the lot so as to bring it
within the provisions of the statute of limitations applicable to cases of persons not in possession.[2]
[FNI] Five Twelve Locust v. Mednikow, 270 S.W.2d 770 (Mo. 1954); De Rosa v. Spaziani, 142
N.Y.S.2d 839 (Sup 1955).
But see Baxter v. Girard Trust Co., 288 Pa. 256, 135 A. 620, 49 A.L.R. lOll (1927), in which the court
denied the claim that title had been acquired by the leaning of the building over the adjoining land, on
the ground that the evidence did not establish with sufficient certainty that the building had leaned for
the full statutory period over a definite portion of the land claimed, saying that when the amount of land
claimed is so small, the rule of location of line is exacting, and possession for the statutory period must
be definitely shown.
[FN2] Kafka v. Bozio, 191 Cal. 746, 218 P. 753,29 A.L.R. 833 (1923).
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AMJUR ADVERSE § 61 Page 2
3 Am. Jur. 2d Adverse Possession § 61
AMJUR ADVERSE § 61
END OF DOCUMENT
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AMJUR ADVERSE II E REF
3 Am. JUL 2d Adverse Possession II E Refs.
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
n. Elements and Requisites
E. Open, Notorious, and Visible Possession
Topic Summary Correlation Table
Research References
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=28 to 33
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 17, 19,23
A.L.R. Index: Adverse Possession
Page 136 of 665
Page I
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AMJUR ADVERSE n E REF
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AMJUR ADVERSE § 62
3 Am. Jur. 2d Adverse Possession § 62
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
E. Open, Notorious, and Visible Possession
Topic Summary Correlation Table References
§ 62. Generally; open, notorious, and visible possession
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=28 to 30, 33
A.L.R. Library
Page 137 of665
Page I
Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48
A.L.R. 3d 818 §§ 9,15,19.
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 § 9.
One of the requisites of adverse possession is that the possession of the adverse claimant must be open and
notorious.[I] The adverse possession of land must generally be visible to ripen into title.[2]
CUMULATIVE SUPPLEMENT
Cases:
Adverse possession is to be made out by acts which are open, visible, notorious and continuous; adverse
possession does not depend upon the secret purpose or intention of the intruder, or that he will return at his con-
venience, sooner or later, and reoccupy the land. MEA Family Investments, LP v. Adams, 284 Ga. 407, 667
S.E.2d 609 (2008).
Power company's use of landowners' property was open and notorious for 20 years, and thus power com-
pany had acquired a prescriptive easement in the property for underground power lines and transformers; the
landowners were living on a lot directly across the street from where the power company installed and main-
tained the underground line and transformers, the transformers were visible, and the opportunity to notice the
presence of the transfonners and inquire as to their purpose was imputed to the landowners. Taylor v. Montana
Power Co., 2002 MT 247,312 Mont. 134,58 P.3d 162 (2002).
It is the visible and adverse possession with an intent to possess that constitutes the occupancy's adverse
character, and not the remote motives or purposes of the occupant; this occupancy must be such as to give notice
to the real owner of the extent of the adverse claim. Evanich v. Bridge, 119 Ohio SI. 3d 260, 2008-0hio-3820,
893 N .E.2d 481 (2008).
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AMJUR ADVERSE § 62 Page 2
3 Am. Jur. 2d Adverse Possession § 62
To succeed in acquiring title by adverse possession, the claimant must show exclusive possession that is
open, notorious, continuous, and adverse for 21 years. Evanich v. Bridge, 119 Ohio st. 3d 260, 2008-0hio-3820,
893 N.E.2d 481 (2008).
lEND OF SUPPLEMENTI
[FN1] McGuire v. Blount, 199 U.S. 142,26 S. Ct. 1,50 L. Ed. 125 (1905); Turnipseed v. Moseley, 248
Ala. 340, 27 So. 2d 483, 170 A.L.R. 882 (1946); Goldman v. Quadrato, 142 Conn. 398, 114 A.2d 687,
55 A.L.R.2d 549 (1955); Cook v. Rochford, 60 So. 2d 531, 32 A.L.R.2d 1210 (Fla. 1952); Anneberg v.
Kurtz, 197 Ga. 188,28 S.E.2d 769, 152 A.L.R. 338 (1944); Walter v. Jones, 15 Ill. 2d 220, 154 N.E.2d
250 (1958); Marengo Cave Co. v. Ross, 212 Ind. 624,10 N.E.2d 917 (1937); Lawse v. Glaha, 253 Iowa
1040, 114 N.W.2d 900 (1962); Volkerding v. Brooks, 359 S.W.2d 736 (Mo. 1962); Frank v. Smith, 138
Neb. 382, 293 N.W. 329, 134 A.L.R. 458 (1940); Bowers v. Mitchell, 258 N.C. 80, 128 S.E.2d 6 (1962)
; Hassell v. Texaco, Inc., 1962 OK 136,372 P.2d 233 (Okla. 1962); Knecht v. Spake, 218 Or. 601, 346
P.2d 98 (1959); Baxter v. Girard Trust Co., 288 Pa. 256, 135 A. 620, 49 A.L.R. 1011 (1927); Gibbs v.
Lester, 41 S.W.2d 28,80 A.L.R. 431 (Tex. Comm'n App. 1931); Raleigh v. Wells, 29 Utah 217, 81 P.
908 (1905); Slater v. Murphy, 55 Wash. 2d 892, 339 P.2d 457 (1959).
As to the elements of adverse possession, generally, see § 10.
[FN2] Walter v. Jones, 15 ill. 2d 220,154 N.E.2d 250 (1958); Marengo Cave Co. v. Ross, 212 Ind. 624,
10 N.E.2d 917 (1937); Yatczak v. Cloon, 313 Mich. 584, 22 N.W.2d 112 (1946); Warner v. Noble, 286
Mich. 654, 282 N.W. 855 (1938); Meyer v. Chessman, 132 Mont. 187,315 P.2d 512 (1957); Kimble v.
Allen, 1956 OK 135,298 P.2d 1042 (Okla. 1956).
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AMJUR ADVERSE § 63
3 Am. Jur. 2d Adverse Possession § 63
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
E. Open, Notorious, and Visible Possession
Topic Summary Correlation Table References
§ 63. What constitutes open and notorious possession
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>28 to 30, 33
Page 139 of 665
Page I
It has been held that the words "open and notorious possession," as applied to the adverse holding of land by
another, mean that an adverse claim of ownership must be evidenced by such conduct as is sufficient to put a
person of ordinary prudence on notice of the fact that the land in question is held by the claimant as his or her
own,[I] including notice both to the record owner[2] and to the public.[3] Possession is visible if it is so obvious
that the true owner is presumed to know ofit.[4]
An adverse possessor's use of land must be sufficiently visible and open to the common observer that the
owner or an agent, on visiting the premises, might readily see that the owner's rights are being invaded.[5]
Practice Guide:
Notoriety, for purposes of establishing title by adverse possession, is not susceptible to a fixed standard, but
rather depends on the character of the land in question.[6] Thus, no particular act to establish an intention to
claim ownership of land by adverse possession is required to give notice to the world of the claim.[7]
A parol gift of land, when proven by clear and convincing evidence, establishes a presumption that the no-
toriety requirement of an adverse possession claim has been satisfied.[8]
Neither the mere possession of land[9] nor the making of vague assertions of the public that a possessor is
claiming the land[1 0] are sufficient to satisfy the requirement of open and notorious possession.
[FNI] Iowa R. Land Co. v. Blumer, 206 U.S. 482, 27 S. Ct. 769, 51 L. Ed. 1148 (1907); Strickland v.
Markos, 566 So. 2d 229 (Ala. 1990); Philbin v. Carr, 75 Ind. App. 560, 129 N.E. 19 (1920); Finn v. Al-
exander, 102 Kan. 607, 171 P. 602 (1918); Appalachian Regional Healthcare, Inc. v. Royal Crown Bot-
tling Co., Inc., 824 S.W.2d 878 (Ky. 1992); Bloodsworth v. Murray, 138 Md. 631, 114 A. 575, 22
A.L.R. 1450 (1921); Gustin v. Scheele, 250 Neb. 269, 549 N.W.2d 135 (1996); Buttz v. James, 33 N.D.
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AMJUR ADVERSE § 63 Page 2
3 Am. Jur. 2d Adverse Possession § 63
162,156 N.W. 547 (1915); Warner v. Wickizer, 1930 OK 419,146 Okla. 232, 294 P. 130 (1930); Faul-
coner v. Williams, 327 Or. 381, 964 P.2d 246 (1998); Estate of Klett v. Eboch, 430 Pa. Super. 193,633
A.2d 1204 (1993); Bender v. Brooks, 103 Tex. 329, 127 S.W. 168 (1910); Scott v. Hansen, 18 Utah 2d
303,422 P.2d 525 (1966); Jarvis v. Gillespie, 155 VI. 633, 587 A.2d 981 (1991); Downie v. City of
Renton, 167 Wash. 374, 9 P.2d 372 (1932); Bettack v. Conachen, 235 Wis. 559,294 N.W. 57 (1940).
[FN2] § 65.
[FN3] § 64.
[FN4] Calhoun v. Woods, 246 Va. 41, 431 S.E.2d285 (1993).
[FN5] Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937); Striefel v. Charles-
Keyt-Leaman Partnership, 1999 ME III, 733 A.2d 984 (Me. 1999); Hoffman v. Freeman Land and
Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999).
[FN6] Clanahan v. Morgan, 268 Ala. 71, 105 So. 2d 429 (1958); Vezey v. Green, 35 P.3d 14 (Alaska
2001); Appalachian Regional Heaithcare, Inc. v. Royal Crown Bottling Co., Inc., 824 S.W.2d 878 (Ky.
1992).
[FN7] Carnevale v. Dupee, 783 A.2d 404 (R.t. 2001).
[FN8] Vezey v. Green, 35 P.3d 14 (Alaska 2001).
[FN9] Ruggles v. Dandison, 284 Mich. 338,279 N.W. 851 (1938); Morgan v. Jenson, 47 N.D. 137, 181
N.W. 89 (1921); Baxter v. Girard Trust Co., 288 Pa. 256, 135 A. 620, 49 A.L.R. 1011 (1927).
[FN10] Rachel v. Johnson, 230 Ark. 1003,328 S.W.2d 87 (1959).
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AMJUR ADVERSE § 64
3 Am. Jur. 2d Adverse Possession § 64
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
E. Open, Notorious, and Visible Possession
Topic Summary Correlation Table References
§ 64. Notice to the public
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=29, 33
Page 141 of665
Page I
It has been held that the possession of an adverse claimant must be so conspicuous that it is generally
known and talked of by the public; in other words, it must be manifest to the community.[I] However, it has
also been held that, because the notice requirement of establishing title by adverse possession pertains only to
the record owner, the adverse possessor's title does not directly depend on whether parties other than the record
owner are on notice of the adverse possession.[2]
[FNI] Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937); Public Lands Access Ass'n, Inc.
v. Boone and Crockett Club Foundation, Inc., 259 Mont. 279, 856 P.2d 525 (1993).
[FN2] Snook v. Bowers, 12 P.3d 771 (Alaska 2000).
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AMJUR ADVERSE § 65
3 Am. Jur. 2d Adverse Possession § 65
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
n. Elements and Requisites
E. Open, Notorious, and Visible Possession
Topic Summary Correlation Table References
§ 65, Notice to the record owner
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£;=31
A,L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 50 et seq.
Page 142 of 665
Page I
The purpose of the "open," II visible," and "notorious" requirements in a common law adverse possession ac-
tion is to provide the true owner with adequate notice that a trespass is occurring, and that the owner's property
rights are in jeopardy, so that the owner can take steps to protect his or her interests.[1) The doctrine of adverse
possession does not allow the possessors to mask their conduct and acquire the land by hiding their true inten-
tions from the owners of record.[2) Thus, it is the legal owner's knowledge, either actual or imputable, of anoth-
er's possession of lands that is required for adverse possession.[3] It is not a mere occupancy or possession that
must be known to the true owner to establish title by adverse possession, but an occupancy that is in opposition
to the owner's rights and in defiance of, or inconsistent with, legal title.[4)
Actual knowledge of an adverse holding is not ordinarily required if the circumstances are such that the
owner ought to have such knowledge;[5) open and notorious possession may be proven by acts so open and no-
torious that the owner's knowledge of them and of their adverse character may be presumed.[6) However, under
some statutes, actual knowledge is required, at least for some types of c1aims.[7)
The true owner is generally chargeable with knowledge of what is openly done, and therefore calculated to
attract attention, on the owner's land.[8) Thus, it will be presumed that the owner knew of a possession that was
openly, notoriously, and visibly maintained for the statutory period.[9)
CUMULATIVE SUPPLEMENT
Cases:
Prescriber must give some notice, actual or constructive, to land owner he intends to prescribe against. MEA
Family Investments, LP v. Adams, 284 Ga. 407, 667 S.E.2d 609 (2008).
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AMJUR ADVERSE § 65 Page 2
3 Am. Jur. 2d Adverse Possession § 65
lEND OF SUPPLEMENT)
[FN I] Vezey v. Green, 35 P.3d 14 (Alaska 2001); Striefel v. Charles-Keyt-Leaman Partnership, 1999
ME Ill, 733 A.2d 984 (Me. 1999); Wanha v. Long, 255 Neb. 849, 587 N. W.2d 531 (1998).
[FN2] Martin v. Randono, 175 Mont. 321, 573 P.2d 1156(1978).
[FN3] Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937); Appalachian Regional Health-
care, Inc. v. Royal Crown Bottling Co., Inc., 824 S.W.2d 878 (Ky. 1992); Trotter v. Gaddis and Mc-
Laurin, Inc., 452 So. 2d 453 (Miss. 1984); Buttz v. James, 33 N.D. 162, 156 N.W. 547 (1915); Bender
v. Brooks, 103 Tex. 329, 127 S.W. 168 (1910); Dillman v. Foster, 656 P.2d 974 (Utah 1982); Chaplin
v. Sanders, 100 Wash. 2d 853, 676 P.2d 431 (1984).
[FN4] Reinheimer v. Rhedans, 327 S.W.2d 823 (Mo. 1959); Darken v. Mooney, 144 Vt. 561, 481 A.2d
407 (1984).
[FN5] Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948); Estate of Wells v. Estate of Smith, 576
A.2d 707 (D.C. 1990); Harrison v. Speer, 94 Fla. 937, 114 So. 515 (1927); Keng v. Franklin, 267 Ga.
472,480 S.E.2d 25 (1997); Estate of Mark v. H.H. Smith Co., 547 N.E.2d 796 (Ind. 1989); Yatczak v.
Cloon, 313 Mich. 584, 22 N.W.2d 112 (1946); Anthony v. Searle, 681 A.2d 892 (R.l. 1996).
[FN6] Emerson v. Maine Rural Missions Ass'n, Inc., 560 A.2d I (Me. 1989).
[FN7] Coleman v. Coleman, 265 Ga. 568, 459 S.E.2d 166 (1995); Johnson v. Kaster, 637 N.W.2d 174
(Iowa 200 I); Bums v. Foster, 348 Mich. 8, 81 N. W.2d 386 (1957).
[FN8] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417,104 A.2d 908 (1954); Robin v. Brown, 308
Pa. 123, 162 A. 161 (1932).
[FN9] Strong v. Baldwin, 154 Cal. 150,97 P. 178 (1908); Carney v. Hennessey, 74 Conn. 107,49 A.
910 (1901); Leggett v. Norman, 192 Miss. 494, 6 So. 2d 578 (1942).
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AMJUR ADVERSE § 66
3 Am. Jur. 2d Adverse Possession § 66
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
E. Open, Notorious, and Visible Possession
Topic Summary Correlation Table References
§ 66. Notice to the record owner-What constitutes notice to the owner
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=31, 32
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 55 et seq.
Page 144 of 665
Page I
Sporadic and temporary activity on the property is insufficient to give the true owner constructive notice of
an adverse claim.[l] An owner is not put on notice by occasional overnight visits,[2] occasional pasturing of
cows,[3] or casual haycutting.[4] Also, mere knowledge of the obvious fact of possession cannot be converted
into proof of knowledge that those in possession were claiming adversely.[5]
The fact that land appears to have been previously occupied is not notice to the owner of an existing intent
of the former occupant to appropriate the land if the appearances indicate an abandonment of any for that pur-
pose.[6]
To constitute constructive notice to the owner, the claimant's acts of possession must be such as to give un-
equivocal notice of a claim of the land adverse to the claims of all others and must be of such character and so
openly done that the real owner will be presumed to know that a possession adverse to the real title has been
taken.[7]
Although the enclosure of land renders the possession of land open and notorious, and tends to show that it
is exclusive, it is not the only way by which possession may be rendered open and notorious; nonenclosing im-
provements to land, such as erecting buildings or planting groves or trees, which show an intention to appropri-
ate the land to some useful purpose, are sufficient.[8]
The nature of an occupation may be sufficient to give notice of its adverse character to interested parties
who are strangers, and yet not be sufficient as to persons standing in more intimate relationship.[9] For example,
occupation of a family estate by one of the family is so usual that acts of occupation that would show hostile
possession as to strangers are not sufficient to show adverse holding as to relatives.[l 0]
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AMJUR ADVERSE § 66
3 Am. Jur. 2d Adverse Possession § 66
[FN I] La Due v. Currel1, 20 I Va. 200, 110 S.E.2d 217 (1959).
[FN2] Hardy v. Bumpstead, 41 S.W.2d 226, 76 A.L.R. 1488 (Tex. Comm'n App. 1931).
[FN3] Reeves v. Porta, 173 Or. 147, 144 P.2d 493 (1944).
[FN4] Ennis v. Stanley, 346 Mich. 296, 78 N.W.2d 114 (1956).
[FN5] Mercer v. Wayman, 9 111. 2d 441, 137 N.E.2d 815 (1956).
[FN6] Hardy v. Bumpstead, 41 S. W.2d 226, 76 A.L.R. 1488 (Tex. Comm'n App. 1931).
Page 145 of 665
Page 2
[FN7] Vezey v. Green, 35 P.3d 14 (Alaska 2001); Boese v. Crane, 182 Kan. 777, 324 P.2d 188 (1958);
El1iott v. West, 665 S. W.2d 683 (Mo. Ct. App. S.D. 1984).
For the purposes of an adverse possession claim, enclosing the lots with the purported owners' other
property, and using the lots for purpose of raising cattle, was sufficient to indicate to the purchaser that
ownership adverse to him was being asserted, and to preclude his claim that the purported owners were
estopped by silence from pursuing their adverse possession claim. Krosmico v. Pettit, 1998 OK 90, 968
P.2d 345 (Okla. 1998).
An adverse claimant's conservation-oriented uses of the property, which included planting indigenous
rather than non-native plants and thinning trees and undergrowth rather than clearing them entirely, had
the same legal weight as would more transfonnative or destructive uses; they were significant to the ex-
tent that they did, or should have, alerted the record owner to the adverse possession. Vezey v. Green,
35 P.3d 14 (Alaska 2001).
[FN8] Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998).
[FN9] Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956).
[FNIO] Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956).
As to the presumption that a family member's use is pennissive, see § 49.
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AMJUR ADVERSE II F REF
3 Am. Jur. 2d Adverse Possession II F Refs.
American Jurisprudence, Second Edition
Database updated November 20 10
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Topic Summary Correlation Table
Research References
West's Key Number Digest
II. Elements and Requisites
F. Exclusive Possession
West's Key Number Digest, Adverse Possession C=34 to 38
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 20
A.L.R. Index: Adverse Possession
Trial Strategy
Acquisition of Title to Property by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession § 63
Page 146 of 665
Page I
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AMJUR ADVERSE § 67
3 Am. Jur. 2d Adverse Possession § 67
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
F. Exclusive Possession
Topic Summary Correlation Table References
§ 67. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£;=34, 38
A.L.R. Library
Page 147 of665
Page I
Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48
A.L.R. 3d 818 §§ 7,13.
Adverse possession between cotenants, 82 A.L.R. 2d 5 § 8.
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 § 10.
Forms
Complaint, petltton, or declaration-Allegation-Exclusive possession. 1 B Am. JUT. Pleading and Practice
Forms, Adverse Possession § 63.
To ripen into title, adverse possession must be exclusive[l] for the statutory period;[2] that is, the claimant
must hold possession of the land under a claim of ownership and not on behalf of another. [3]
"Exclusive possession" means that the claimant must show an exclusive dominion over the land and an ap-
propriation of it to his or her own use and benefit.[4]
CUMULATIVE SUPPLEMENT
Cases:
Evidence supported trial court's finding that neighbors failed to establish exclusive possession of disputed
tract of land on boundary, and thus neighbors could not establish title by adverse possession; evidence indicated
that both neighbors and owner of abutting lot maintained disputed tract, which contained row of forsythia
bushes, and lot owner testified that he maintained all sides of bushes, mowed lawn in front of and in between
bushes, removed overgrown bushes, and subsequently planted and cut grass where bushes had been. Chuckta v.
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AMJUR ADVERSE § 67 Page 2
3 Am. JUT. 2d Adverse Possession § 67
Asija, 97 Conn. App. 232, 903 A.2d 243 (2006).
lEND OF SUPPLEMENTI
[FNI] Alice State Bank v. Houston Pasture Co., 247 U.S. 240, 38 S. Ct. 496, 62 L. Ed. 1096 (1918);
Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 ALR. 882 (1946); Register v. Coleman, 130
Ariz. 9, 633 P.2d 418 (1981); Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908
(1954); Georgia Power Co. v. Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997); Walter v. Jones, 15 Ill. 2d
220, 154 N.E.2d 250 (1958); Shaw v. Bandel, 122 Kan. 343, 251 P. 1086 (1927); Bloodsworth v. Mur-
ray, 138 Md. 631, 114 A. 575, 22 A.L.R. 1450 (1921); Dead River Fishing & Hunting Club v. Stovall,
147 Miss. 385, I I3 So. 336 (1927); Grimes v. Armstrong, 304 S.W.2d 793 (Mo. 1957); Anderson v.
Johnson, 264 Mont. 66, 870 P.2d 59 (1994); Wanha v. Long, 255 Neb. 849, 587 N. W.2d 531 (1998);
Collins v. Smith, 1962 OK 128,372 P.2d 878 (Okla. 1962); W. T. Carter & Bro. v. Holmes, 131 Tex.
365,113 S.W.2d 1225 (Comm'n App. 1938); Slater v. Murphy, 55 Wash. 2d 892, 339 P.2d 457 (1959).
Landowners failed to establish exclusive possession of a disputed tract by virtue of their cattle grazing
on the land throughout the statutory period because it was not clear whether the cattle were purposely
placed on the land or whether they strayed onto it, and because another neighboring landowner's cattle
also grazed on the disputed land during the statutory period. Rutar Farms & Livestock, Inc. v. Fuss, 651
P.2d 1129 (Wyo. 1982).
[FN2] §§ 13 to 15.
[FN3] Brown v. Alabama Great Southern R. Co., 544 So. 2d 926 (Ala. 1989); Blickenstaff v. Bromley,
243 Md. 164,220 A.2d 558 (1966); Walker v. Walker, 509 S.W.2d 102 (Mo. 1974); Hehnke v. Starr,
158 Neb. 575, 64 N.W.2d 68 (1954); W. T. Carter & Bro. v. Holmes, 131 Tex. 365,113 S.W.2d 1225
(Comm'n App. 1938).
In a suit in which the plaintiffs claimed title to the disputed tract by adverse possession, there was some
evidence that the possession of the plaintiffs and their predecessors in interest was exclusive, although
the record title owners had executed oil and gas leases and possibly easements that covered the disputed
tract, because no lessee or grantee had ever actually entered the disputed premises under the record
owners' authority, and it was undisputed that no member of the record owner or predecessor's families
or any other person had ever entered upon the disputed tract. Fish v. Bannister, 759 S.W.2d 714 (Tex.
App. San Antonio 1988).
As to possession on behalf of another, see §§ 23, 24.
[FN4] Family Land & Inv. Co. v. Williams, 273 Ala. 273,138 So. 2d 696 (1961); Georgia Power Co. v.
Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997); Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917
(1937); Elliott v. West, 665 S.W.2d 683 (Mo. Ct. App. S.D. 1984); Collins v. Smith, 1962 OK 128,372
P.2d 878 (Okla. 1962); W. T. Carter & Bro. v. Holmes, 131 Tex. 365,113 S.W.2d 1225 (Comm'n App.
1938); Pioneer Investment & Trust Co. v. Board of Education of Salt Lake City, 35 Utah I, 99 P. 150
(1909).
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AMJUR ADVERSE § 67 Page 3
3 Am. Jur. 2d Adverse Possession § 67
An adverse claimants' policy of corralling stray cattle belonging to others on land enclosed by the
claimants confirmed that their possession was exclusive. Fadem v. Kimball, 1979 OK CIV APP 40,612
P.2d 287 (Okla. C!. App. Div. I 1979).
In an action to quiet plaintiffs title to a parcel formed by accretion, a defendant who grazed cattle and
picked blueberries on the land failed to establish the exclusivity of possession requisite to title by ad-
verse possession because others grazed cattle on the land as well. Werner v. Brown, 44 Or. App. 319,
605 P.2d 1352 (1980).
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3 Am. Jur. 2d Adverse Possession § 68
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
F. Exclusive Possession
Topic Summary Correlation Table References
§ 68, Absolute exclusivity
West's Key Number Digest
West's Key Number Digest, Adverse Possession 0(;;=34
Page 150 of 665
Page I
An adverse claimant's possession need not be absolutely exclusive; it need only be a type of possession that
would characterize an average owner's use.[l]
CUMULATIVE SUPPLEMENT
Cases:
Joint use of the property with the owner does not satisfy the adverse possession statute because possession
must be of such character as to indicate unmistakably an assertion of a c1aim of exclusive ownership in the occu-
pant. V.T.C.A., Civil Practice & Remedies Code § 16.021(1). Gulley v. Davis, 321 S.W.3d 213 (Tex. App. Hou-
ston 1st Dist. 20 I 0), petition for review filed, (Sept. 17, 20 10).
lEND OF SUPPLEMENTI
[FNI] Tenala, Ltd. v. Fowler, 921 P.2d 1114 (Alaska 1996); Smith v. Hayden, 772 P.2d 47 (Colo.
1989); Smith v. Tippett, 569 A.2d 1186 (D.C. 1990); Georgia Power Co. v. Irvin, 267 Ga. 760, 482
S.E.2d 362 (1997); Blickenstaff v. Bromley, 243 Md. 164, 220 A.2d 558 (1966); Thornburg v. Haecker,
243 Neb. 693, 502 N.W.2d 434 (1993); Hoffman v. Freeman Land and Timber, LLC., 329 Or. 554, 994
P .2d 106 (1999).
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3 Am. Jur. 2d Adverse Possession § 69
American Jurisprudence, Second Edition
Database updated November 201 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
F. Exclusive Possession
Topic Summary Correlation Table References
§ 69, Ouster of the record owner
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=34, 37
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 10 et seq.
Page 151 of665
Page I
A possession that does not amount to an ouster of the owner of land is not sufficiently exclusive to support
adverse possession[ I] because, in the absence of ouster, the owner of the legal title constructively possesses the
property.[2] Thus, an adverse possessor cannot share the disputed property with the true owner.[3]
[FNI] New York Annual Conference of United Methodist Church v. Fisher, 182 Conn. 272, 438 A.2d
62 (1980); Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983); Marengo Cave Co. v. Ross, 212 Ind.
624, 10 N.E.2d 917 (1937); Keller v. Harrison, 151 Iowa 320, 128 N.W. 851 (1910); Nichols v. Gaddis
& McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625 (1954), error overruled, 222 Miss. 207, 78 So. 2d 471
(1955) (cotenant); Collins v. Smith, 1962 OK 128, 372 P.2d 878 (Okla. 1962); Adams v. Lamicq, 118
Utah 209, 221 P.2d 1037 (1950); Wilson v. Braden, 56 W. Va. 372, 49 S.E. 409 (1904).
As to the ouster of a cotenant, see §§ 204 et seq.
[FN2] §27.
[FN3] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME 111,733 A.2d 984 (Me. 1999).
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3 Am. JUL 2d Adverse Possession § 69
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AMJUR ADVERSE § 70
3 Am. Jur. 2d Adverse Possession § 70
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
n. Elements and Requisites
F. Exclusive Possession
Topic Summary Correlation Table References
§ 70. Ouster of the record owner-What constitutes an ouster of the record owner
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>34, 37
Page 153 of 665
Page I
To constitute an ouster of the record owner, it is generally only necessary that the adverse claimant enter
and take possession of the lands as if they were the claimant's own, and with the intention of holding them to the
exclusion of all others.[ I]
In determining what amounts to an ouster, that which is evidence of actual possession is also evidence of
ouster.[2] For example, one of the most effective means of proving an ouster is by showing the exercise of acts
of dominion over the land by the adverse claimant.[3]
To effect an ouster by entry and occupation, the occupation must be of such nature and notoriety that the
owner may be presumed to know that there is a possession of the land adverse to the owner's title.[4]
To amount to an ouster, it is not necessary that the claimant enter under color of title or either believe or as-
sert a right to enter.[5] On the other hand, setting up a mere claim or color of title is not sufficient to work an
ouster. [6]
[FNI] Thomas v. Mrkonich, 247 Minn. 481, 78 N.W.2d 386 (1956).
A plaintiff showed exclusive possession of the disputed land under a claim of ownership because the
tract, which was used as a dumping ground prior to possession by the plaintiff, was used for grazing
livestock after the plaintiffs possession, because the plaintiff posted the disputed tract and closed it to
dumping, and because the plaintiff maintained a fence on one side of the tract. Wiedeman v. James E.
Simon Co., Inc., 209 Neb. 189,307 N.W.2d 105 (1981).
[FN2] Hahn v. Keith, 170 Wis. 524,174 N.W. 551 (1919).
As to actual possession, generally, see §§ 16 et seq.
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AMJUR ADVERSE § 70
Page 2
3 Am. Jur. 2d Adverse Possession § 70
[FN3] O'Banion v. Simpson, 44 Nev. 188, 191 P. 1083 (1920).
[FN4] Tenala, Ltd. v. Fowler, 921 P.2d 1114 (Alaska 1996); Town of Cavendish v. Barlow, 120 Vt.
161,136 A.2d 352 (1957); Leake v. Richardson, 199 Va. 967,103 S.E.2d 227 (1958).
[FN5] Thomas v. Mrkonich, 247 Minn. 481, 78 N.W.2d 386 (1956).
As to color of title and claim of right, generally, see §§ 130 et seq.
[FN6] Leake v. Richardson, 199 Va. 967,103 S.E.2d 227 (1958).
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American Jurisprudence, Second Edition
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Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
F. Exclusive Possession
Topic Summary Correlation Table References
§ 71. Effect of possession or use by two or more persons
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£;:=35, 36
Page 155 of 665
Page I
There cannot be a concurrent possession of land under conflicting claims of right.[ I] Thus, two or more per-
sons cannot hold one tract of land adversely to each other at the same time,[2] and a mixed, shared, or scrambled
possession is not exclusive and will not ripen into title.[3] If two or more persons are in possession of real estate,
ordinarily none has the exclusive possession necessary to establish adverse possession.[4] More specifically, the
requisite of exclusive possession for acquisition of title by adverse possession is not satisfied if occupancy is
shared with the owner or with agents or tenants of the owner.[5]
However, two or more persons may jointly claim and may jointly possess lands without destroying the ex-
clusive nature of their possession. [6]
Caution:
A trifling encroachment or trespass by an adjoining owner on land held adversely, removed or terminated at the
request of the adverse claimant under recognition of his claim and title, is not sufficient basis for holding that
the adverse claimant's possession has not been exclusive during the statutory period.[7]
[FNI] Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983); Sneed v. Hamilton, 299 S.W.2d 769 (Tex.
Civ. App. Beaumont 1957).
[FN2] Dzuris v. Kucharik, 164 Colo. 278, 434 P.2d 414 (1967) (record owner's flooding of land held to
prevent acquisition by the adjoining landowner); Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d
917 (1937); Ernest Realty Co. v. Hunter Co., 189 La. 379, 179 So. 460 (1938); Gilman v. McCrary, 97
N.M. 376, 640 P.2d 482 (1982); Howard v. Stanolind Oil & Gas Co., 1946 OK 56, 197 Okla. 269, 169
P.2d 737 (1946); Sneed v. Hamilton, 299 S.W.2d 769 (Tex. Civ. App. Beaumont 1957).
[FN3] Collins v. Smith, 1962 OK 128,372 P.2d 878 (Okla. 1962).
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3 Am. Jur. 2d Adverse Possession § 71
In a dispute over real property suitable only for trapping and hunting, in which both parties had exer-
cised acts of possession and neither party had been in exclusive control of the property, title to the prop-
erty could not be acquired by prescription. Voisin v. Luke, 341 So. 2d 6 (La. C!. App. 1st Cir. 1976),
writ denied, 342 So. 2d 224 (La. 1977).
[FN4] Eason v. Samson Lodge No. 624, A.F. & A.M., 270 Ala. 194, 117 So. 2d 138 (1959); Gadd v.
Stone, 459 So. 2d 773 (Miss. 1984); Cofer v. Kuhlmann, 214 Neb. 341, 333 N.W.2d 905 (1983);
Humphreys v. Gribble, 227 S.W.2d 235 (Tex. Civ. App. Waco 1950), writ refused n.r.e., (Apr. 19,
1950); Sowerwine v. Nielson, 671 P.2d 295 (Wyo. 1983).
[FN5] Irving Pulp & Paper Ltd. v. Kelly, 654 A.2d 416 (Me. 1995); Wanha v. Long, 255 Neb. 849, 587
N.W.2d 531 (1998); Rick v. Grubbs, 147 Tex. 267, 214 S.W.2d 925 (1948).
A landowner who claimed title to a disputed strip of land through adverse possession failed to prove
that he had been in exclusive possession of the disputed area for ten years; the evidence indicated that
both parties had repeatedly cut timber on the disputed strip over the years. Dees v. Pennington, 561 So.
2d 1065 (Ala. 1990).
[FN6] Anzaldua v. Richardson, 287 S. W.2d 299 (Tex. Civ. App. San Antonio 1956), writ refused n.r.e;
Bank of Vema I v. Uintah County, 122 Utah 410, 250 P.2d 581 (1952).
[FN7] Pueblo of Santa Ana v. Baca, 844 F.2d 708 (10th Cir. 1988) (applying New Mexico law); Smith
v. Hayden, 772 P.2d 47 (Colo. 1989); City of Rock Springs v. Stunn, 39 Wyo. 494, 273 P. 908, 97
A.L.R. I (1929).
The fact that cattle from neighboring fanns occasionally found their way to an area claimed by adverse
possession did not render the possession nonadverse. Norgard v. Busher, 220 Or. 297, 349 P.2d 490, 80
A.L.R.2d 1161 (1960).
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AMJUR ADVERSE § 71
END OF DOCUMENT
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AMJUR ADVERSE § 72
3 Am. Jur. 2d Adverse Possession § 72
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
F. Exclusive Possession
Topic Summary Correlation Table References
§ 72. Effect of use by claimant and the public
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=34, 35
A,L.R. Library
Page 157 of 665
Page I
Use of property by public as affecting acquisition of title by adverse possession, 56 A.L.R. 3d 1182 §§ 3, 5.
Trial Strategy
Proof of right to title by adverse possession despite use of land by public. Acquisition of Title to Property
by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261 §§ 50 et seq.
As a general rule, any use of premises by the public that indicates a claim of common or public right will
prevent the acquisition of title by adverse possession of the premises by any person, because if there is such use,
the possession is not exc1usive.[ I] This rule does not apply, however, if the use and occupation by the claimant
and the public are not common uses.[2] Also, the permissive use of land by the public does not affect the acquis-
ition of title by adverse possession, because such pennissive use acknowledges the possession of the person
holding the land, and is subordinate to that possession.[3] The same is true of casual use by the pUblic.[4]
CUMULATIVE SUPPLEMENT
Cases:
Evidence was sufficient to establish that public travel and use of road was open and notorious for ten con-
secutive years, in landowners' quiet title action in which county road commission and township asserted that
two-track road bordering landowners' property was a highway by user; though "road closed," "dead end" and "no
trespassing" signs had been posted on disputed portion of road for about 50 years, prior owner of one of the
properties testified that he saw people use disputed portion of road for hunting, horseback riding, snowmobiling
and bog running and that when he farmed property people would use road to purchase grain, hay and calves,
there was evidence that members of the public used the road in spite of the signs, and individual who served as
road commission's assistant superintendent and then superintendent for almost 20 years testified that he drove
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and inspected disputed portion of road every year as part of his duties. M.C.L.A. § 221.20. Villadsen v. Mason
County Road Com'n, 268 Mich. App. 287, 706 N.W.2d 897 (2005).
lEND OF SUPPLEMENT I
[FNI] Roche v. Town of Fairfield, 186 Conn. 490, 442 A.2d 911 (1982); Striefel v. Charles-
Keyt-Leaman Partnership, 1999 ME III, 733 A.2d 984 (Me. 1999); Johnston v. City of Albuquerque,
12 N.M. 20, 72 P. 9 (1903); Pirman v. Confer, 273 N.Y. 357, 7 N.E.2d 262, III A.L.R. 216 (1937);
Kelleyv. Salvas, 146 Wis. 543,131 N.W.436(1911).
Because some 500 hunters used an island and the defendant only used it for recreational purposes, the
defendant could not claim adverse possession. Winkle v. Mitera, 195 Neb. 821, 241 N.W.2d 329 (1976).
[FN2] Bensdorffv. Uihlein, 132 Tenn. 193, 177 S.W. 481, 2 A.L.R. 1364 (1915).
The fact that trespassers may occasionally have hunted or fished on the property without permission
was not sufficient to interrupt the adverse possession of disputed property by a claimant who farmed the
property. Nennemann v. Rebuck, 242 Neb. 604, 496 N.W.2d 467 (1993).
[FN3] Bensdorffv. Uihlein, 132 Tenn. 193, 177 S.W. 481, 2 A.L.R. 1364 (1915).
[FN4] Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756 (1969); Stark v. Stanhope,
206 Kan. 428, 480 P.2d 72, 56 A.L.R.3d 1172 (1971).
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AMJUR ADVERSE § 72
END OF DOCUMENT
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AMJUR ADVERSE II G REF
3 Am. Jur. 2d Adverse Possession II G Refs.
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Topic Summary Correlation Table
Research References
West's Key Number Digest
II. Elements and Requisites
G. Continuity of Possession
West's Key Number Digest, Adverse Possession C=43 to 45, 46.1 to 53, 55
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 39 to 42
A.L.R. Index: Adverse Possession
Trial Strategy
Acquisition of Title to Property by Adverse Possession, 39 Am. Jur. Proof of Facts 261
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession §§ 45, 46, 49, 50
Page 159 of 665
Page I
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AMJUR ADVERSE II G REF
END OF DOCUMENT
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AMJUR ADVERSE § 73
3 Am. Jur. 2d Adverse Possession § 73
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming. J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
1. In General
Topic Summary Correlation Table References
§ 73. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£;=44
A.L.R. Library
Page 160 of 665
Page I
Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48
A.L.R. 3d 818 §§ 8,14.
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 37 et seq.
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 § I I.
For adverse possession of real property to ripen into title, it is necessary to show that the possession has
been continuous and uninterrupted for the full statutory period.[I] Title cannot be acquired without the simultan-
eous and continuous existence of each element of adverse possession for the required period.[2] The moment the
possession is broken, it ceases to be effectual; as soon and as often as a break occurs, the law restores the con-
structive possession of the owner.[3]
Different and distinct periods of possession cannot be added together to make up the statutory period,[4] al-
though successive occupations of those in privity with each other may be tacked together to make the statutory
period.[5]
The statutory period of adverse possession need not be for the prescribed number of years immediately be-
fore suit is brought.[6] This is consistent with the rule that, after expiration of the statutory period, the adverse
claimant has a vested right or title that is not lost by cessation of occupancy of the land. [7]
[FNI] Iowa R. Land Co. v. Blumer, 206 U.S. 482, 27 S. Cl. 769, 51 L. Ed. 1148 (1907); Faulks v.
Schrider, 114 F.2d 587 (App. D.C. 1940); Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170
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3 Am. Jur. 2d Adverse Possession § 73
A.L.R. 882 (1946); Goldman v. Quadrato, 142 Conn. 398, 114 A.2d 687, 55 A.L.R.2d 549 (1955); Sea-
board Air Line Ry. Co. v. Board of Bond Trustees of Special Road and Bridge Dis!. No. I of Alachua
County, 91 Fla. 612, 108 So. 689, 46 A.L.R. 870 (1926); Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d
769, 152 A.L.R. 338 (1944); Walter v. Jones, 15 Ill. 2d 220, 154 N.E.2d 250 (1958); Philbin v. Carr, 75
Ind. App. 560, 129 N.E. 19 (1920); Meyers v. Canutt, 242 Iowa 692, 46 N.W.2d 72, 24 A.L.R.2d I
(1951); Creech v. Jenkins, 276 Ky. 163, 123 S.W.2d 267 (1938); Bloodsworth v. Murray, 138 Md. 631,
114 A. 575,22 A.L.R. 1450 (1921); Miller v. Martin, 259 Minn. 177, 106 N.W.2d 549 (1960); Volkerd-
ing v. Brooks, 359 S.W.2d 736 (Mo. 1962); Scott v. Jardine Gold Min. & Mill. Co., 79 Mont. 485, 257
P. 406 (1927); Hardt v. Eskam, 218 Neb. 81, 352 N.W.2d 583 (1984); Bowers v. Mitchell, 258 N.C. 80,
128 S.E.2d 6 (1962); Anderson v. Francis, 1936 OK 312, 177 Okla. 47, 57 P.2d 619 (1936); Baxter v.
Girard Trust Co., 288 Pa. 256, 135 A. 620, 49 A.L.R. lOll (1927); Atlantic Coast Line R. Co. v. Baker,
143 S.c. 445, 141 S.E. 688 (1927); Hardy v. Bumpstead, 41 S.W.2d 226, 76 A.L.R. 1488 (Tex.
Comm'n App. 1931); Calhoun v. Woods, 246 Va. 41, 431 S.E.2d 285 (1993); Slater v. Murphy, 55
Wash. 2d 892, 339 P.2d 457 (1959); Illinois Steel Co. v. Budzisz, 106 Wis. 499, 81 N.W. 1027 (1900).
[FN2] Dugan v. Jensen, 244 Neb. 937, 510 N.W.2d 313 (1994).
[FN3] McBeth v. Wetnight, 57 Ind. App. 47, 106 N.E. 407 (Div. 1 1914); Atlantic Coast Line R. Co. v.
Baker, 143 S.C. 445,141 S.E. 688 (1927); Wilson v. Braden, 56 W. Va. 372, 49 S.E. 409 (1904).
As to interruption of possession, see §§ 88 et seq.
As to constructive possession of the record owner, see § 27.
[FN4] Creech v. Jenkins, 276 Ky. 163, 123 S.W.2d 267 (1938).
[FN5] §§ 76 et seq.
[FN6] Moore v. Hoffman, 327 Mo. 852, 39 S. W.2d 339, 75 A.L.R. 135 (1931)
[FN7] § 249.
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AMJUR ADVERSE § 73
END OF DOCUMENT
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AMJUR ADVERSE § 74
3 Am. Jur. 2d Adverse Possession § 74
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
I. In General
Topic Summary Correlation Table References
§ 74. What constitutes continuity of possession
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=44
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 37 et seq.
Page 162 of 665
Page I
The term ncontinuous, n in the context of adverse possession, means a possession for the statutory period that
is uninterrupted or stretches on without a break.[I] Because what constitutes continuity of possession must ne-
cessarily depend largely on the circumstances of each case, the circumstances and situation of the possessor, and
particularly the intention of the possessor, must be considered in determining continuity.[2] The law does not re-
quire that the claimant remain continuously on the land, and perform acts of ownership from day to day on it, to
acquire title by adverse possession.[3] The claimant's possession and its continuity is sufficient if by acts and
conduct it is apparent to persons of ordinary prudence that the claimant is asserting and exercising ownership
over the property; and for this purpose it is necessary to take into consideration the nature, character, and loca-
tion of the property and the uses for which it is fitted or to which it has been put.[4]
Observation:
It is important to bear in mind that possession is not to be confused with residence.[5] The important considera-
tion is whether or not the physical use of the property by the claimant or a representative, the erection of struc-
tures, or the keeping of personal property on it demonstrates that the claimant is asserting dominion over the
property.[6] To establish title to land by adverse possession, the claimant need not show occupancy of the land
continuously unless that is the kind of use that would be expected of such land.[7]
The existence of fences and other visible indications of hosti1e claims is taken into consideration in detenn-
ining whether, in a given case, adverse possession has been continuous. if the land is enclosed, the courts seem
not to insist that other acts of possession be shown clearly to have been continuous.[8]
Because the purpose of the requirements for adverse possession is to put the true owner on notice of the ad-
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verse possessor's ciaim,[9] to establish an adverse possession claim, the continuity of possession must be suffi-
cient to signal to the true owner that a claim of title contrary to his or her own is being asserted.[10]
CUMULATIVE SUPPLEMENT
Cases:
Evidence that claimant added a second story to home, planted grass and bushes, and hired a maintenance
worker to mow supported inference that claimant's possession of disputed property under color of title extended
over required seven-year period, satistying requirement that adverse possession be continuous, where there was
no evidence indicating that claimant ceased occupying property for any amount of time during required period.
West's N.C.G.S.A. § 1-38. McManus v. Kluttz, 165 N.C. App. 564, 599 S.E.2d 438 (2004).
lEND OF SUPPLEMENTI
[FN I] Striefel v. Charles-Keyt-Leaman Partnership, 1999 ME III, 733 A.2d 984 (Me. 1999); Green-
walt Family Trust v. Kehler, 267 Mont. 508, 885 P.2d 421 (1994); Wanha v. Long, 255 Neb. 849, 587
N.W.2d 531 (1998).
[FN2] Horton v. Smith-Richardson Inv. Co., 81 Fla. 255, 87 So. 905 (1921); N.A.S. Holdings, Inc. v.
Pafundi, 169 Vt. 437, 736 A.2d 780 (1999), cett. denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d
672 (2000).
[FN3] Limbaugh v. Richardson, 402 So. 2d 957 (Ala. 1981); Jones v. Schmidt, 170 Neb. 351, 102
N.W.2d 640 (1960); Ray v. Beacon Hudson Mountain Corp., 88 N.Y.2d 154, 643 N.Y.S.2d 939, 666
N.E.2d 532 (1996).
[FN4] Vezey v. Green, 35 P.3d 14 (Alaska 2001); Thompson v. Morris, 218 Ark. 542, 237 S.W.2d 473,
24 A.L.R.2d 627 (1951); Horton v. Smith-Richardson Inv. Co., 81 Fla. 255, 87 So. 905 (1921); McBeth
v. Wetnight, 57 Ind. App. 47, 106 N.E. 407 (Div. I 1914); Striefel v. CharIes-Keyt-Leaman Partnership,
1999 ME 111,733 A.2d 984 (Me. 1999); Weiss v. Meyer, 208 Neb. 429, 303 N.W.2d 765 (1981); Ray
v. Beacon Hudson Mountain Corp., 88 N.Y.2d 154, 643 N.Y.S.2d 939, 666 N.E.2d 532 (1996); Smith
v. Southern Ry.-Carolina Division, 237 S.c. 597, 118 S.E.2d 440 (1961).
[FN5] § 31.
[FN6] Thompson v. Ratcliff, 245 S.W.2d 592 (Ky. 1952).
[FN7] Allison v. Shepherd, 285 Or. 447, 591 P.2d 735 (1979).
[FN8] Faulks v. Schrider, 114 F.2d 587 (App. D.C. 1940); Kay v. Biggs, 13 Ariz. App. 172,475 P.2d I
(Div. I 1970).
As to enclosure as showing dominion over the land, see §§ 36 to 40.
[FN9] Tenala, Ltd. v. Fowler, 921 P.2d 1114 (Alaska 1996).
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[FN I 0] Anthony v. Searle, 681 A.2d 892 (R.l. 1996).
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AMJUR ADVERSE § 75
3 Am. Jur. 2d Adverse Possession § 75
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
1. In General
Topic Summary Correlation Table References
§ 75. What constitutes continuity of possession-Occasional acts; seasonal activities
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£:=44, 45, 46.1
A.L.R. Library
Use of property by public as affecting acquisition of title by adverse possession, 56 A.L.R. 3d 1182 § 4.
Page I
Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48
A.L.R. 3d 818 § 18.
Adverse possession: sufficiency, as regards continuity, of seasonal possession other than for agricultural or
logging purposes, 24 A.L.R. 2d 632 §§ 4, 5 (seasonal hunting and fishing).
Occasional and sporadic acts of dominion are generally insufficient to constitute a continuous possession,
even if they are extended over the statutory period.[I] Thus, the occasional use of land for hunting or fishing is
an insufficient basis for a claim by adverse possession.[2] The requirement of continuity of possession is satis-
fied, however, by activities that are seasonal in character, if the use of land commensurate with and appropriate
to existing seasonal uses, needs, requirements, and limitations, having regard for the location and adaptability of
the land.[3] Although woodlands are usually occupied in the literal sense only during periods of harvesting the
timber, they may be subject to continuous possession within legal contemplation over periods of time during the
intervals between cuttings.[4]
The regular use of property as a summer home, and for recreation purposes during summers, is a sufficient
basis for a claim of adverse possession.[5] Also, if the continuous use of land that is the subject of an adverse
possession claim is premised upon the grazing of livestock, the requisite continuity may be established by show-
ing continuous use during the pasturing season.[6]
CUMULATIVE SUPPLEMENT
Cases:
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Owner's recreational use of the boat ramp that was on disputed piece of property did not interrupt the run-
ning of the statutory period for adverse possession; the use had none of the characteristics of maintenance, up-
keep, and improvement of land that evinced possession, but rather, use of the boat ramp was more akin to the
occasional, recreational use that was insufficient to establish possession. Senez v. Collins, 182 Md. App. 300,
957 A.2d 1057 (2008).
lEND OF SUPPLEMENT]
[FNI] Hagan v. Crowley, 265 Ala. 291, 90 So. 2d 760 (1956); Ennis v. Stanley, 346 Mich. 296, 78
N.W.2d 114 (1956); Norman v. Smedley, 1961 OK 143, 363 P.2d 839 (Okla. 1961); Westover Volun-
teer Fire Dept. v. Barker, 142 W. Va. 404, 95 S.E.2d 807 (1956).
In an action to recover possession of a paved tract of land being used by an adjacent landowner for
parking, the adjacent landowner could not demonstrate a continuous and uninterrupted use of land for
the full statutory period because the land had been paved for only five years, and before that the land
was unusable for parking except in dry weather. Also, during the dry periods, the use by the adjacent
landowner was not continuous. Baur v. Chevron Chemical Co., 631 F. Supp. 1491 (E.D. Mo. 1986)
(applying Missouri law).
The evidence failed to establish adverse possession because the claimant and the claimant's predecessor
in interest had made only infrequent visits to the property to pick and gather fruits, thus precluding a
finding of continuous possession. Okuna v. Nakahuna, 60 Haw. 650, 594 P.2d 128 (1979).
[FN2] W. T. Carter & Brother v. Ruth, 275 S.W.2d 126 (Tex. Civ. App. Beaumont 1955).
[FN3] Thompson v. Morris, 218 Ark. 542,237 S.W.2d 473, 24 A.L.R.2d 627 (1951); Roche v. Town of
Fairfield, 186 Conn. 490, 442 A.2d 911 (1982); Lee v. Raymond, 456 A.2d 1179 (R.l. 1983); Burkhardt
v. Smith, 17 Wis. 2d 132, lIS N.W.2d 540 (1962).
A town acquired title to a beach by adverse possession because for the requisite period it maintained the
area as a public beach on a daily basis from Memorial Day to Labor Day and on weekends in Septem-
ber. Roche v. Town of Fairfield, 186 Conn. 490, 442 A.2d 911 (1982).
A trial court's findings of adverse use for the statutory period were not clearly erroneous because the
defendants had placed steel pipes in the ground to mark the boundaries of a hunting camp and from
1947 to 1969 used the camp each year for hunting and general recreation with children and friends.
Darling v. Ennis, 138 Vt. 311,415 A.2d 228 (1980).
As to seasonal breaks in continuity not constituting interruption of possession of adverse claimant, see § 90.
[FN4) Amey v. Hall, 123 Vt. 62,181 A.2d 69 (1962).
[FN5] Kay v. Biggs, 13 Ariz. App. 172,475 P.2d I (Div. I 1970); Mahoney v. Heebner, 343 Mass. 770,
178 N.E.2d 26 (1961); Nechtow v. Brown, 369 Mich. 460, 120 N.W.2d 251 (1963); Lee v. Raymond,
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AMJUR ADVERSE § 75 Page 3
3 Am. Jur. 2d Adverse Possession § 75
456 A.2d 1179 (R.!. 1983); Burkhardt v. Smith, 17 Wis. 2d 132, 115 N. W.2d 540 (1962).
[FN6] Hoffman v. Freeman Land and Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999).
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AMJUR ADVERSE § 76
3 Am. Jur. 2d Adverse Possession § 76
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
2. Tacking of Successive Possessions
a. In General
Topic Summary Correlation Table References
§ 76. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession <E>43(l)
A. L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 § II (under parol gift).
Forms
Page 168 of 665
Page I
Answer-Oefense-Tacking prior possession. 18 Am. JUT. Pleading and Practice Forms, Adverse Posses-
sion §§ 45, 46.
Instruction to of adverse Tacking prior possession. I BAm. Jur. Pleading and
Practice Forms, Adverse Possession § 49.
The doctrine of "tacking" is one that permits an adverse possessor to add his or her period of possession to
that of a prior adverse possessor to establish continuous possession for the statutory period.[ I] Under this doc-
trine, to come within the requirements as to continuity of possession, it is not necessary that an adverse posses-
sion be maintained for the statutory period by one person.[2] Continuity may be just as effectively shown by the
successive possessions of several persons between whom the requisite privity exists.[3] If the successive posses-
sions of those in privity with each other, when tacked together, constitute one continuous adverse possession for
the statutory period, it will be sufficient,[4] provided the other elements of adverse possession are also present.[5]
However, periods of adverse occupancy by parties in privity to one another cannot be tacked together if
there is an abandonment of possession or other interruption automatically returning possession of the premises
to the record owner between the periods of adverse occupancy.[6]
If the applicable statute requires the payment of taxes on land before title may be acquired by adverse pos-
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3 Am. Jur. 2d Adverse Possession § 76
session, a prior possession cannot be tacked onto a present possession to make out the statutory period unless the
prior possessor paid the taxes.[7]
Caution:
Under some statutes, a claim by adverse possession cannot prevail by tacking on possession by predecessors in
title to the claimant.[8] Under other statutes, tacking is allowed only if the change in possession occurs by opera-
tion oflaw.[9]
[FN I] Strickland v. Markos, 566 So. 2d 229 (Ala. 1990); Hubbard v. Curtiss, 684 P.2d 842 (Alaska
1984); Bartlett v. Calhoun, 412 So. 2d 597 (La. 1982); Worm v. Crowell, 165 Neb. 713, 87 N.W.2d 384
(1958); Fagan v. Grady, 101 N.H. 18, 131 A.2d 441 (1957); Oliphant v. Dalton, 1956 OK 316, 304 P.2d
300 (Okla. 1956); Estate of Billings v. Deadwood Congregation of Jehovah Witnesses, 506 N.W.2d 138
(S.D. 1993); Salt Lake City v. Silver Fork Pipeline Corp., 2000 UT 3, 5 P.3d 1206 (Utah 2000); Meyer
v. Ellis, 411 P.2d 338 (Wyo. 1966).
[FN2] Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940); Shingleton v. North Carolina Wildlife
Resources Commission, 248 N.C. 89, 102 S.E.2d 402 (1958); Du Val v. Miller, 208 Or. 176,300 P.2d
416 (1956); Dale v. Stringer, 570 S.W.2d 414 (Tex. Civ. App. Texarkana 1978), writ refused n.r.e.,
(Dec. 13, 1978).
[FN3] Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940); Cooper v. Tarpley, 112 Ind. App. 1,41
N.E.2d 640 (1942); Howard v. Mitchell, 268 Ky. 429, 105 S.W.2d 128 (1936); Fredericksen v. Henke,
167 Minn. 356, 209 N.W. 257, 46 A.L.R. 785 (1926); Worm v. Crowell, 165 Neb. 713, 87 N.W.2d 384
(1958); Shingleton v. North Carolina Wildlife Resources Commission, 248 N.C. 89, 102 S.E.2d 402
(1958); Buckner v. Russell, 1958 OK 237, 331 P.2d 401 (Okla. 1958); Faulconer v. Williams, 327 Or.
381,964 P.2d 246 (1998); Stark v. Lardin, 133 Pa. Super. 96, I A.2d 784 (1938); Carnevale v. Dupee,
783 A.2d 404 (R.1. 2001).
As to the necessity of privity, see § 78.
[FN4] Waller v. Dansby, 145 Ark. 306, 224 S.W. 615 (1920); Territory v. Pai-a, 34 Haw. 722, 1938
WL 6825 (1938); Smith v. Brown, 126 Ind. App. 545, 134 N.E.2d 823 (1956); Shingleton v. North Car-
olina Wildlife Resources Commission, 248 N.C. 89, 102 S.E.2d 402 (1958); Ellis v. Williams, 1956 OK
163,297 P.2d 916 (Okla. 1956); Du Val v. Miller, 208 Or. 176,300 P.2d 416 (1956); Baylor v. Soska,
540 Pa. 435, 658 A.2d 743 (1995); Sutton v. Clark, 59 S.C. 440, 38 S.E. 150 (190 I).
[FN5] Emmer v. Rector, 175 La. 82, 143 So. 11 (1932); Du Val v. Miller, 208 Or. 176,300 P.2d 416
(1956); Dale v. Stringer, 570 S.W.2d 414 (Tex. Civ. App. Texarkana 1978), writ refused n.r.e., (Dec.
13, 1978).
[FN6] Kellum v. Corr, 149 A.D. 200, 133 N.Y.S. 784 (2d Dep't 1912), affd, 209 N.Y. 486, 103 N.E.
70 I (1913); Du Val v. Miller, 208 Or. 176,300 P.2d 416 (1956).
[FN7] Judd v. Meoska, 76 S.D. 537, 82 N.W.2d 283 (1957).
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As to statutory requirements for payment of taxes, see §§ 148 et seq.
[FN8] Cochran v. Milligan, 359 Mich. 148, 101 N.W.2d 292 (1960).
[FN9] Catawba Indian Tribe of South Carolina v. State of S.c., 978 F.2d 1334 (4th Cir. 1992) (applying
South Carolina law).
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AMJUR ADVERSE § 77
3 Am. Jur. 2d Adverse Possession § 77
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
2. Tacking of Successive Possessions
a. In General
Topic Summary Correlation Table References
§ 77. Necessity of adverse holding by the predecessor
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=43(1), (2)
Page 171 of 665
Page I
A claimant cannot tack or link his or her possession of the premises with that of other persons to support the
claim of adverse possession in the absence of proof of an adverse holding and occupancy on the part of the pre-
decessor;[ I] and in some jurisdictions, the predecessor must have held under color or claim of title.[2] Thus, if it
is shown that a predecessor in title held the land by permission or had abandoned every intention of holding it
adversely, the predecessor's possession cannot be tacked onto that of the successor.[3]
[FNI] Archuleta v. Rose, 136 Colo. 211, 315 P.2d 201 (1957); Marquis v. Drost, 155 Conn. 327, 231
A.2d 527 (1967); Kinder v. Ramey, 267 Ky. 312, 102 S.W.2d 32 (1937); Maas v. Platte Val. Public
Power and Irr. Disl., 167 Neb. 124,91 N.W.2d 409 (1958); McGee v. Stokes' Heirs at Law, 76 N.W.2d
145 (N.D. 1956); Norman v. Smedley, 1961 OK 143, 363 P.2d 839 (Okla. 1961); Ellis v. Jansing, 620
S.W.2d 569 (Tex. 1981); Laird Properties New England Land Syndicate v. Mad River Corp., 131 VI.
268,305 A.2d 562 (1973); Perpignani v. Vonasek, 139 Wis. 2d 695, 408 N. W.2d I (1987).
As to adverse holding or occupancy, generally, see §§ 41 et seq.
[FN2] Raby v. Hill, 11 Alaska 600, 1948 WL 777 (Terr. Alaska 1948).
As to color or claim of title, generally, see §§ 130 et seq.
[FN3] SI. Louis Union Trust Co. v. Smith, 207 Ark. 815, 182 S.W.2d 945 (1944); Masters v. Local Uni-
on No. 472, United Mine Workers of America, of South Fork, 146 Pa. Super. 143,22 A.2d 70 (1941).
As to permissive possession, generally, see §§ 47 et seq.
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AMJUR ADVERSE § 77 PageZ
3 Am. Jur. 2d Adverse Possession § 77
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AMJUR ADVERSE § 78
3 Am. Jur. 2d Adverse Possession § 78
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
11. Elements and Requisites
G. Continuity of Possession
2. Tacking of Successive Possessions
a. In General
Topic Summary Correlation Table References
§ 78. Necessity of privity
West's Key Number Digest
West's Key Number Digest, Adverse Possession 0(:;=43(3)
Forms
Page 173 of 665
Page I
Instruction to jury-Period of adverse possession-Tacking prior possession-Necessity of deed. 1 BAm.
Jur. Pleading and Practice Forms, Adverse Possession § 50.
To tack one person's possession to that of another for purposes of adverse possession, a nexus or pnvlty
between the successive claimants is necessary.[I] Thus, successive possessions cannot be tacked for the purpose
of showing a continuous adverse possession in the absence of privity of estate or a connection between the suc-
cessive occupants.[2]
Caution:
Because the required privity is privity of possession, it is the transfer of possession, and not title, that is the es-
sential element.[3]
The requirement of privity is based on the theory that the several occupancies must be so connected that
each occupant can go back to the original entry or holding as a source of title; the successive occupants must
claim through and under their predecessors, and not independently, to make a continuous holding united into one
ground of action.[4] The law restores the possession of the rightful owner on every discontinuance of the posses-
sion of one who holds adversely to the rightful owner.[5]
[FN I] Strickland v. Markos, 566 So. 2d 229 (Ala. 1990); Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d
900 (1948); Maas v. Platte Val. Public Power and lrr. Dist., 167 Neb. 124, 91 N.W.2d 409 (1958);
Evans v. Hogue, 296 Or. 745, 681 P.2d 1133 (1984); Perpignani v. Vonasek, 139 Wis. 2d 695, 408
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3 Am. Jur. 2d Adverse Possession § 78
N.W.2d I (1987).
[FN2] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); Merritt v. Smith, 35
So. 2d 817 (La. Ct. App. 2d Cir. 1948); Wishart v. McKnight, 178 Mass. 356, 59 N.E. 1028 (1901);
Bums v. Crump, 245 N.C. 360, 95 S.E.2d 906 (1957).
[FN3] Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235 (1953); Dale v. Stringer, 570 S.W.2d 414 (Tex.
Civ. App. Texarkana 1978), writ refused n.r.e., (Dec. 13, 1978) (requiring privity of possession but not
of title); Brown v. Gobble, 196 W. Va. 559,474 S.E.2d 489 (1996); Brown v. Gobble, 196 W. Va. 559,
474 S.E.2d 489 (1996).
[FN4] Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948); Maas v. Platte Val. Public Power and
Irr. Dist., 167 Neb. 124,91 N.W.2d 409 (1958); Masters v. Local Union No. 472, United Mine Workers
of America, of South Fork, 146 Pa. Super. 143,22 A.2d 70 (1941).
[FN5] Wishart v. McKnight, 178 Mass. 356, 59 N.E. 1028 (1901).
As to interruption of possession, see §§ 90 et seq.
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AMJUR ADVERSE § 79
3 Am. Jur. 2d Adverse Possession § 79
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
2. Tacking of Successive Possessions
a. In General
Topic Summary Correlation Table References
§ 79. What constitutes privity of possession
West's Key Number Digest
West's Key Number Digest, Adverse Possession €;;::>43(3 to 8)
A.L.R. Library
Tacking adverse possession of area not within description of deed or contract, 17 A.L.R. 2d 1128 §§ 7, 8.
Page I
Privity of possession is a succession of relationship to the same thing, whether created by deed or by other
act, or by operation of law.[ I] Privity of possession exists if one person holds the property under or for another
or in subordination to his or her claim and under an agreement or arrangement recognized as valid between
themselves.[2] The privity necessary to support the tacking of successive possessions of property may be based
on any connecting relationship that will prevent a breach in the adverse possession and connect the several pos-
sessions to the original entry.[3] Thus, if one adverse claimant, by agreement, surrenders possession to another,
and the acts of the parties are such that the two possessions actually connect, leaving no interval for the con-
structive possession of the true owner to intervene, the two possessions are blended into one, and the running of
the limitation period on the right of the true owner to reclaim the land is continued.[4]
A transfer of possession alone, without written evidence of the transfer, is sufficient to create privity.[5] All
that is necessary to privity between successive occupants of property is that one person receive possession from
the other by some act of such other or by operation ofJaw.[6]
Evidence of successive occupancies does not establish the necessary privity, but only shows a succession of
independent trespasses, one not necessarily supporting the other.[7]
[FNI] Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948); Blalock v. Redwine, 191 Ga. 169, 12
S.E.2d 639 (1940); Smith v. Brown, 126 Ind. App. 545, 134 N.E.2d 823 (1956); Stark v. Lardin, 133
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3 Am. Jur. 2d Adverse Possession § 79
Pa. Super. 96, 1 A.2d 784 (1938).
[FN2] Newkirk v. Porter, 237 N.C. 115,74 S.E.2d 235 (1953).
As to evidence of a transfer, see § 82.
As to delivery of possession, see § 83.
[FN3] Sorensen v. Costa, 32 Cal. 2d 453,196 P.2d 900 (1948).
As to interruption of possession, see §§ 88 et seq.
[FN4] Sattler v. Pellichino, 71 So. 2d 689 (La. Ct. App. 1st Cir. 1954); Morgan v. Jenson, 47 N.D. 137,
181 N.W. 89 (1921); Harris v. Grayson, 1930 OK 546, 146 Okla. 291, 294 P. 187 (1930); Illinois Steel
Co. v. Budzisz, 106 Wis. 499, 81 N.W. 1027 (1900).
[FN5] § 82.
[FN6] Sparks v. Byrd, 562 So. 2d 211 (Ala. 1990) (transfer of title or possession); Cooper v. Tarpley,
112 Ind. App. 1, 41 N.E.2d 640 (1942); Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235 (1953); Mor-
gan v. Jenson, 47 N.D. 137, 181 N.W. 89 (1921); Ellis v. Williams, 1956 OK 163,297 P.2d 916 (Okla.
1956); Shuttles v. Butcher, I S.W.2d 661 (Tex. Civ. App. EI Paso 1927), writ refused, (May 9, 1928);
Illinois Steel Co. v. Budzisz, 106 Wis. 499,81 N.W. 1027 (1900).
As to delivery of possession, see § 83.
[FN7] Maas v. Platte Val. Public Power and lrr. Dist., 167 Neb. 124,91 N.W.2d 409 (1958).
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AMJUR ADVERSE § SO
3 Am. Jur. 2d Adverse Possession § SO
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
2. Tacking of Successive Possessions
a. In General
Topic Summary Correlation Table References
§ 80. Between whom privity of possession exists
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>43(3 to S)
Page 177 of 665
Page I
All that is generally necessary to privity between successive occupants of property is that one receive pos-
session from the other by some act of such other or by operation of law, the one taking under the other as by
descent, will, grant, or other transfer ofpossession.[I] Thus privity exists between:
- the promoters or officers of a corporation and the corporation.[2]
- a mortgagee and a mortgagor.[3]
- a landlord and a tenant.[4]
- a landlord's grantee and a tenant.[ 5]
-members ofa family.[6]
- a deceased spouse and a surviving spouse.[7]
- cotenants.[S]
- a tenant for life or years and the holder of the remainder or reversion.[9]
- a seller and a purchaser.[IO]
- a grantor and a grantee.[II]
- a decedent and his or her heirs[ 12]
- a decedent and the representative of the estate or a purchaser or an heir and the representative of the es-
tate or a purchaser. [ 13]
- a testator and a devisee.[14]
[FNI] § 79.
[FN2] Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940).
As to corporations, generally, see IS, 19 Am. Jur. 2d, Corporations.
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3 Am. Jur. 2d Adverse Possession § 80
[FN3] Strickland v. Markos, 566 So. 2d 229 (Ala. 1990).
[FN4] Powers v. Malavazos, 25 Ohio App. 450, 6 Ohio L. Abs. 62, 158 N.E. 654 (4th Dis!. Scioto
County 1927); Illinois Steel Co. v. Budzisz, 106 Wis. 499, 81 N.W. 1027 (1900).
As to landlord and tenant, generally, see 49, 50 Am. Jur. 2d, Landlord and Tenant.
[FN5] Shoer v. Daffe, 337 Mass. 420,149 N.E.2d 625 (1958).
[FN6] Shaffer v. Baylor's Lake Ass'n, 392 Pa. 493, 141 A.2d 583 (1958).
[FN7] Souleyette v. McKee, 296 Ky. 868,178 S.W.2d 833 (1944).
[FN8] § 210.
[FN9] Whittington v. Cameron, 385 III. 99, 52 N.E.2d 134, 150 A.L.R. 551 (1943); Charles v. Pickens,
214 Mo. 212,112 S.W. 551 (1908).
As to estates in land, generally, see 28 Am. Jur. 2d, Estates.
[FNIO] Fredericksen v. Henke, 167 Minn. 356,209 N.W. 257, 46 A.L.R. 785 (1926).
[FNII] Page v. Downs, 115 N.H. 373, 341 A.2d 767 (1975); Newkirk v. Porter, 237 N.C. 115, 74
S.E.2d 235 (1953).
But see Adams v. Adams, 220 S.C. 131,66 S.E.2d 809 (1951), holding that the possession of a grantor
cannot be tacked onto that of a grantee.
[FNI2] Catawba Indian Tribe of South Carolina v. State of S.c., 978 F.2d 1334 (4th Cir. 1992)
(applying South Carolina law); Fredericksen v. Henke, 167 Minn. 356, 209 N.W. 257, 46 A.L.R. 785
(1926); Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235 (1953); Lewis v. Smith, 1940 OK 276, 187
Okla. 404, 103 P.2d 512 (1940); Cooke v. Doll, 19 Pa. D. & C. 655, 1933 WL 3756 (C.P. 1933); Sali-
nas v. Gutierrez, 341 S.W.2d 558 (Tex. Civ. App. San Antonio 1960), writ refused n.r.e., (Apr. 26, 1961).
As to descent and distribution, generally, see 23 Am. Jur. 2d, Descent and Distribution.
[FNI3] § 81.
[FNI4] Whittington v. Cameron, 385 III. 99, 52 N.E.2d 134, 150 A.L.R. 551 (1943); Charles v. Pick-
ens, 214 Mo. 212,112 S.W. 551 (1908).
As to testamentary dispositions, see 79, 80 Am. Jur. 2d, Wills.
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AMJUR ADVERSE § 81
3 Am. Jur. 2d Adverse Possession § 81
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
2. Tacking of Successive Possessions
a. In General
Topic Summary Correlation Table References
Page 179 of 665
Page I
§ 81. Between whom privity of possession exists-Decedent or heirs and representative of estate or pur-
chaser from representative of estate
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=43(6)
A.L.R. Library
Adverse possession of executor or administrator or his vendee as continuous with that of ancestor and heirs,
43 A.L.R. 2d 1061 §§ 2, 3.
It has been held that, because the adverse possession of an executor or administrator is continuous with that
of the decedent or the latter's heirs, the possession of the personal representative may be tacked to that of the de-
cedent or the latter's heirs for the purposes of determining whether the possession continued uninterrupted for a
sufficient time to perfect the title by adverse possession.[I] Similarly, the possession of a testator is continued
by the possession of an executor asserting ownership for the benefit of the estate, under a will empowering the
executor to sell the property and vesting in the executor the power to carry out that power.[2] Also, the adverse
possession of a purchaser from an executor or administrator is continuous with that of the ancestor or heirs.[3]
However, it has also been held that, in the absence of a statute providing otherwise, privity does not exist
between a decedent and the administrator of the estate.[4]
[FN I] Cannon v. Prude, 181 Ala. 629, 62 So. 24 (1913); Farlow v. Brown, 208 Ga. 646, 68 S.E.2d 903
(1952); Stalcup v. Lingle, 76 Ind. App. 242, 131 N.E. 852 (Div. 2 1921); Abbott v. Mars, 277 Mass.
122, 177 N.E. 829 (1931); Vanderbilt v. Chapman, 172 N.C. 809,90 S.E. 993 (1916); Sinclair Refining
Co. v. Romohr, 95 Ohio App. 93, 52 Ohio Op. 456, 117 N.E.2d 489, 43 A.L.R.2d 1058 (1st Dis!. Clin-
ton County 1953).
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3 Am. Jur. 2d Adverse Possession § 81
[FN2] Vanderbilt v. Chapman, 172 N.C. 809, 90 S.E. 993 (1916).
[FN3] Abbott v. Mars, 277 Mass. 122, 177 N.E. 829 (1931); Vanderbilt v. Chapman, 172 N.C. 809,90
S.E. 993 (1916); Sinclair Refining Co. v. Romohr, 95 Ohio App. 93, 52 Ohio Op. 456, 117 N.E.2d 489,
43 A.L.R.2d 1058 (1st Dist. Clinton County 1953).
[FN4] Charles v. Pickens, 214 Mo. 212,112 S.W. 551 (1908).
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AMJUR ADVERSE § 82
3 Am. Jur. 2d Adverse Possession § 82
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
2. Tacking of Successive Possessions
a. In General
Topic Summary Correlation Table References
§ 82. Evidence of transfer; necessity of a writing
West's Key Number Digest
West's Key Number Digest, Adverse Possession <80=43(1)
Page 181 of665
Page I
An adverse possession begun and continued for a time, to be available to a successor, must be transferred to
the successor in some lawful manner,[I] such as descent, will, grant,[2] or judicial sale.[3]
In some jurisdictions, it is not necessary that there be a conveyance[4] or even a transfer in writing.[5] All
that the law requires for privity of possession is a continuous adverse possession for the full statutory period,
and continuity may be accomplished as well by a parol agreement or understanding, under which the actual pos-
session of the premises is delivered, as by a written conveyance.[6] However, in other jurisdictions, one who
seeks to tack the prior adverse possession of a grantor onto his or her own possession must show an express ref-
erence to or description of the disputed property in the grantor's deed.[7]
It is generally not necessary that a conveyance by an adverse claimant be recorded in the absence of a stat-
utory requirement to this effect.[8]
[FNI] Masters v. Local Union No. 472, United Mine Workers of America, of South Fork, 146 Pa. Su-
per. 143,22 A.2d 70 (1941).
[FN2] Prestrud v. Young, 124 Colo. 95, 242 P.2d 613 (1951); Harris v. Grayson, 1930 OK 546, 146
Okla. 291, 294 P. 187 (1930).
[FN3] Illinois Steel Co. v. Budzisz, 106 Wis. 499,81 N.W. 1027 (1900).
[FN4] Withers v. Burton, 268 Ala. 365,106 So. 2d 876 (1958).
[FN5] Withers v. Burton, 268 Ala. 365, 106 So. 2d 876 (1958); Territory v. Pai-a, 34 Haw. 722, 1938
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Page 182 of 665
AMJUR ADVERSE § 82 Page 2
3 Am. Jur. 2d Adverse Possession § 82
WL 6825 (1938); Boese v. Crane, 182 Kan. 777, 324 P.2d 188 (1958).
[FN6] Withers v. Burton, 268 Ala. 365, 106 So. 2d 876 (1958); Marvel v. Barley Mill Road Homes, 34
Del. Ch. 417, 104 A.2d 908 (1954); Blalock v. Redwine, 191 Ga. 169, 12 S.E.2d 639 (1940); Viking
Refrigerator & Mfg. Co. v. Crawford, 84 Kan. 203, 114 P. 240 (1911); Arduino v. City of Detroit, 249
Mich. 382, 228 N.W. 694 (1930); Harris v. Grayson, 1930 OK 546, 146 Okla. 291, 294 P. 187 (1930);
Evans v. Hogue, 296 Or. 745, 681 P.2d 1133 (1984); Illinois Steel Co. v. Budzisz, 106 Wis. 499, 81
N.W. 1027 (1900).
As to delivery of possession, see § 83.
[FN7] Cutliffv. Densmore, 354 Mich. 586,93 N.W.2d 307 (1958).
[FN8] Roberson v. Downing Co., 120 Ga. 833, 48 S.E. 429 (1904); Harris v. Grayson, 1930 OK 546,
146 Okla. 291, 294 P. 187 (1930).
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AMJUR ADVERSE § 82
END OF DOCUMENT
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AMJUR ADVERSE § 83
3 Am. JUT. 2d Adverse Possession § 83
American Jurisprudence, Second Edition
Database updated November 201 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
2. Tacking of Successive Possessions
a. In General
Topic Summary Correlation Table References
§ 83. Delivery of possession
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 4 3 ( 1 )
Page 183 of 665
Page I
Continuity with the original adverse occupation may be saved by any agreement to transfer to another the
rights and the possession of the adverse claimant, if the agreement is accompanied by an actual delivery of the
possession.[ I] It is not necessary to a continuity of possession that the new occupant be personally present on
the premises before the former occupant departs or that there be a formal, manual transfer of possession,[2] as
long as the possessory periods connect or overlap.[3]
[FNI] Keyser v. Brown, 80 Ind. App. 504, 138 N.E. 514 (Div. 1 1923); Wishart v. McKnight, 178
Mass. 356, 59 N.E. 1028 (1901); Maes v. Olmsted, 247 Mich. 180,225 N.W. 583 (1929); Powers v.
Malavazos, 25 Ohio App. 450, 6 Ohio L. Abs. 62, 158 N.E. 654 (4th Dis!. Scioto County 1927); Harris
v. Grayson, 1930 OK 546,146 Okla. 291, 294 P. 187 (1930).
[FN2] Shoer v. Daffe, 337 Mass. 420, 149 N.E.2d 625 (1958).
[FN3] § 79.
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AMJUR ADVERSE § 84
3 Am. Jur. 2d Adverse Possession § 84
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
2. Tacking of Successive Possessions
b. Necessity ofInclusion of Land in Deed or Contract
Topic Summary Correlation Table References
§ 84. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession €;:;:;>43(l), (2)
A. L.R. Library
Page 184 of 665
Page I
Tacking adverse possession of area not within description of deed or contract, 17 A.L.R. 2d 1128 §§ I, 3 to 6.
Periods of a prior owner's adverse possession may be tacked if the prior owner as well as the present owner
meet the requirements for adverse possession, and the instrument of conveyance to the present owner describes
the disputed parcel in terms that are minimally acceptable to identify the property.[I]
However, as a basis for tacking the successive possessions of a seHer and a purchaser of an area not within
the description of the deed or contract, some sort of privity between them must be shown as to that area,[2] and
neither a deed nor a contract creates privity of possession as to the land outside its description.[3] Nor does priv-
ity exist under such circumstances on the bare taking of possession of land previously occupied by the grantor.[4
] Thus, although this rule is sharply limited,[5] the general rule is a deed does not of itself create privity between
the grantor and the grantee as to land not described in the deed but occupied by the grantor, even if the grantee
enters into possession of the land not described and uses it in connection with the land that was conveyed.[6]
It is even clearer that, if the deed expressly excludes certain property occupied by the grantor in connection
with that conveyed, the grantee, though succeeding to the possession of the excluded property, cannot tack the
grantor's possession to that of the grantee.[7] Otherwise, a person receiving a conveyance of a part of lands oc-
cupied by a predecessor might use the possession of that predecessor of another part of the land to defeat the
right of the predecessor with respect to the part of the land that the predecessor intended to keep.[8]
CUMULATIVE SUPPLEMENT
Cases:
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AMJUR ADVERSE § 84 Page 2
3 Am. Jur. 2d Adverse Possession § 84
Generally the rule is that possession cannot be tacked to make out title by prescription where the deed by
which the last occupant claims title does not include the land in dispute. Senez v. Collins, 182 Md. App. 300,
957 A.2d 1057 (2008).
lEND OF SUPPLEMENT)
[FN I] Baylor v. Soska, 540 Pa. 435, 658 A.2d 743 (1995).
[FN2] Rentschler v. Walnofer, 203 Neb. 84, 277 N. W.2d 548 (1979); Pyron v. Colbert, 46 Tenn. App.
287,328 S.W.2d 825 (1959).
[FN3] Mims v. Alabama Power Co., 262 Ala. 121,77 So. 2d 648 (1955); Isacks v. Deutsch, 114 So. 2d
746 (La. Ct. App. 1st Cir. 1959); Frank v. Smith, 138 Neb. 382, 293 N.W. 329, 134 A.L.R. 458 (1940);
Alukonis v. Kashulines, 96 N.H. 107,70 A.2d 202, 17 A.L.R.2d 1125 (1950); Gerhart v. Hilsenbeck,
164 Pa. Super. 85, 63 A.2d 124 (1949).
[FN4] Gerhart v. Hilsenbeck, 164 Pa. Super. 85, 63 A.2d 124 (1949); Home Owners' Loan Corporation
v. Dudley, 105 Utah 208,141 P.2d 160 (1943).
As to the existence of privity on the taking of possession, see § 79.
As to the delivery of possession, see § 83.
[FN5] §§ 85 et seq.
[FN6] Cutliff v. Densmore, 354 Mich. 586, 93 N. W.2d 307 (1958); Kramper v. st. John's Church of
Vista, 131 Neb. 840,270 N.W. 478 (1936); Bums v. Crump, 245 N.C. 360, 95 S.E.2d 906 (1957); Mas-
ters v. Local Union No. 472, United Mine Workers of America, of South Fork, 146 Pa. Super. 143, 22
A.2d 70 (1941); Peoples v. Hagaman, 31 Tenn. App. 398, 215 S.W.2d 827 (1948).
[FN7] Meerhoff v. Rouse, 4 A.D.2d 740, 163 N.Y.S.2d 746 (4th Dep't 1957); Doty v. Chalk, 632 P.2d
644 (Colo. Ct. App. 1981); Marquis v. Drost, 155 Conn. 327, 231 A.2d 527 (1967); Trustees of Broad-
fording Church of the Brethren v. Western Md. Ry. Co., 262 Md. 84, 277 A.2d 276 (1971); Kramper v.
St. John's Church of Vista, 131 Neb. 840, 270 N.W. 478 (1936); Gerhart v. Hilsenbeck, 164 Pa. Super.
85,63 A.2d 124 (1949).
[FN8] Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948).
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AMJUR ADVERSE § 84
END OF DOCUMENT
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AMJUR ADVERSE § 85
3 Am. Jur. 2d Adverse Possession § 85
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
2. Tacking of Successive Possessions
b. Necessity of Inclusion of Land in Deed or Contract
Topic Summary Correlation Table References
§ 85. Intention as controlling
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>43(1), (2)
A.L.R. Library
Page 186 of 665
Page I
Tacking adverse possession of area not within description of deed or contract, 17 A.L.R. 2d 1128 §§ I to 5,
7 to 9.
The rule that a deed does not create privity between a grantor and a grantee so as to permit the tacking of
possessions of land not described in the deed[l] is sharply limited. It is apparently applicable only to those cases
in which the deed itself is solely relied on to create privity. and in the absence of any circumstance showing an
intent to transfer the possession of any property beyond the calls of the deed.[2]
Also, under the doctrine that a transfer of the possession of property sufficient to create privity of posses-
sion between successive occupants may be made by parol or implied from circumstances,[3] if, in connection
with a conveyance of lands, there are circumstances showing an intent to transfer to the grantee the possession
of other adjacent land occupied by the grantor, but not covered by the deed, there is privity, and the grantee is
entitled to tack the period of the grantor's occupancy to the grantee's own in establishing title by adverse posses-
sion to the land not conveyed.[4] Under these circumstances, it is not the deed that creates privity, but the trans-
fer of possession found from facts outside the deed.[5] Thus, a purchaser may tack the adverse possession of a
predecessor in interest if the land was intended to be included in the deed or contract between them, but was
mistakenly omitted from the description.[6]
Parol evidence is admissible to show that the property was bought as a whole.[7]
[FNI] § 84.
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Page 187 of 665
AMJUR ADVERSE § 85 Page 2
3 Am. Jur. 2d Adverse Possession § 85
[FN2] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104 A.2d 908 (1954); Cutliff v. Densmore,
354 Mich. 586, 93 N.W.2d 307 (1958); Lurvey v. Burrell, 317 S.W.2d 458 (Mo. 1958); Alukonis v.
Kashulines, 96 N.H. 107, 70 A.2d 202, 17 A.L.R.2d 1125 (1950); Peoples v. Hagaman, 31 Tenn. App.
398,215 S.W.2d 827 (1948); lIIinois Steel Co. v. Budzisz, 106 Wis. 499, 81 N.W. 1027 (1900).
[FN3] § 82.
[FN4] Bussey v. Bussey, 403 So. 2d 907 (Ala. 1981); Cooper v. Tarpley, 112 Ind. App. I, 41 N.E.2d
640 (1942); Big Run Coal & Clay Co. v. Helton, 323 S.W.2d 855 (Ky. 1959); Freed v. Cloverlea Cit-
izens Ass'n, Inc., 246 Md. 288, 228 A.2d 421 (1967); Dubois v. Karazin, 315 Mich. 598,24 N.W.2d
414 (1946); Fredericksen v. Henke, 167 Minn. 356, 209 N.W. 257, 46 A.L.R. 785 (1926); Brand v.
Prince, 35 N.Y.2d 634, 364 N.Y.S.2d 826, 324 N.E.2d 314 (1974); Morgan v. Jenson, 47 N.D. 137, 181
N.W. 89 (1921); Sinclair Refining Co. v. Romohr, 95 Ohio App. 93, 52 Ohio Op. 456, 117 N.E.2d 489,
43 A.L.R.2d 1058 (1st Dis!. Clinton County 1953); Shuttles v. Butcher, I S.W.2d 661 (Tex. Civ. App.
EI Paso 1927), writ refused, (May 9, 1928).
In an ejectment action concerning a disputed strip of land, a defendant who claimed title by adverse
possession could tack his period of possession onto that of his predecessor in interest because, although
the predecessor did not convey the disputed strip, the predecessor testified that he intended to convey,
and the defendant testified that he intended to purchase, all of the land, including the disputed strip.
Kennedy v. Findley, 552 S.W.2d 352 (Mo. Ct. App. 1977).
[FN5] Cooper v. Tarpley, 112 Ind. App. 1,41 N.E.2d 640 (1942); Mary v. Maurer, 339 Mich. 115,62
N.W.2d 455 (1954).
Where in an action to quiet title there is evidence that plaintiff was shown boundaries which included
the strip of land in dispute by her predecessor in title and that such tract had been enclosed and cultiv-
ated for many years by plaintiff and her predecessors, plaintiff, in support of her right to such tract by
adverse possession, may tack the possession of her predecessors in title, even though the deeds in her
chain of title do not include the strip in question. Alukonis v. Kashulines, 96 N.H. 107,70 A.2d 202, 17
A.L.R.2d 1125 (1950).
[FN6] Buchanan v. Cassell, 53 Wash. 2d 611, 335 P.2d 600 (1959).
[FN7] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417,104 A.2d 908 (1954).
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AMJUR ADVERSE § 85
END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 86
3 Am. Jur. 2d Adverse Possession § 86
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
2. Tacking of Successive Possessions
b. Necessity of Inclusion of Land in Deed or Contract
Topic Summary Correlation Table References
§ 86. Unconveyed land enclosed with that conveyed
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 4 3 ( l ) , (2)
A.L.R. Library
Page 188 of 665
Page I
Tacking adverse possession of area not within description of deed or contract, 17 A.L.R. 2d 1128 §§ 9 to I I.
It has been held that, if land that is being claimed by an adverse possessor is included in the same enclosure
with land owned and conveyed by the claimant's grantor, the taking of possession by the claimant of the entire
enclosed area creates a privity with the grantor as to the portion that was not conveyed.[I] Thus, if a purchaser
of land encloses and occupies a tract outside described boundaries, believing it to be included, and in that belief
conveys it to another by the same description, intending that the grantee shall take the whole enclosed area, the
grantor's possession may be tacked to that of the grantee.[2]
However, it has also been held that successive possessions of land not within a deed of conveyance may be
tacked only if the property under possession is marked by visible bounds;[3] and it has been held that, even if
land adversely held is included in the same enclosure with land owned and conveyed by the grantor, the taking
of possession by the grantee of the entire enclosed area does not create a privity with the grantor as to the por-
tion not conveyed.[4]
[FNI] St. Louis Southwestern Ry. Co. v. Mulkey, 100 Ark. 71, 139 S.W. 643 (1911); Prestrud v.
Young, 124 Colo. 95, 242 P.2d 613 (1951); Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, 104
A.2d 908 (1954); Cooper v. Tarpley, 112 Ind. App. 1,41 N.E.2d 640 (1942); Big Run Coal & Clay Co.
v. Helton, 323 S.W.2d 855 (Ky. 1959); Wishart v. McKnight, 178 Mass. 356, 59 N.E. 1028 (1901); Fre-
dericksen v. Henke, 167 Minn. 356, 209 N.W. 257, 46 A.L.R. 785 (1926); Auldridge v. Spraggin, 349
Mo. 858,163 S.W.2d 1042 (1942); McCormick v. Sorenson, 58 Wash. 107, 107 P. 1055 (1910).
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Page 189 of 665
AMJUR ADVERSE § 86 Page 2
3 Am. Jur. 2d Adverse Possession § 86
Although a disputed strip of land was not included in the instrument of conveyance, the purchaser was
allowed to tack the adverse possession of the prior holder because the boundary line contended for by
the purchasers was well-defined by a fence running generally parallel to a section line described in the
deeds, because the prior holder was in possession of and using the property up to the fence at the time
he contracted to seU, and because the purchaser was placed in actual possession of the entire property,
including the disputed strip. Watson v. Price, 356 So. 2d 625 (Ala. 1978).
As to an enclosure as showing dominion over the land, see §§ 36 to 40.
[FN2] Graham v. Hawkins, 281 Ala. 288, 202 So. 2d 74 (1967); St. Louis Southwestern Ry. Co. v.
Mulkey, 100 Ark. 71, 139 S.W. 643 (1911); Prestrud v. Young, 124 Colo. 95, 242 P.2d 613 (1951);
Cooper v. Tarpley, 112 Ind. App. 1,41 N.E.2d 640 (1942); Big Run Coal & Clay Co. v. Helton, 323
S.W.2d 855 (Ky. 1959); McCormick v. Sorenson, 58 Wash. 107, 107 P. 1055 (1910); Clithero v. Fen-
ner, 122 Wis. 356, 99 N.W. 1027 (1904).
Although, according to the deed, the true boundary line between plaintiffs property and that of defend-
ant was the north and south center line of the section, because for more than 30 years a boundary line
fence had been maintained more than 50 feet to the west of that line, and the successive owners in de-
fendant's chain of title had successively succeeded to possession up to the fence line, and the plaintiff,
until shortly before commencing the action, had not realized that the fence did not mark the boundary
line called for by the deeds, the defendant was entitled to tack to his own the possession of his prede-
cessors in interest. Lively v. Wick, 122 Colo. 156,221 P.2d 374 (1950).
[FN3]lsacks v. Deutsch, 114 So. 2d 746 (La. Ct. App. 1st Cir. 1959).
[FN4] JeffTies v. Sheehan, 242 Mich. 167,218 N.W. 703 (1928).
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AMJUR ADVERSE § 87
3 Am. Jur. 2d Adverse Possession § 87
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
2. Tacking of Successive Possessions
b. Necessity of Inclusion of Land in Deed or Contract
Topic Summary Correlation Table References
§ 87. Encroached on land included with that conveyed
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=43(1), (2)
A.L.R. Library
Page 190 of 665
Page I
Tacking adverse possession of area not within description of deed or contract, 17 A.L.R. 2d 1128 §§ 9, 10, 12.
Generally, the fact that the seller and purchaser were successively in adverse possession of buildings or oth-
er structures encroaching on land adjoining that described in the deed or contract is convincing evidence of a
transfer to the purchaser of possession of the area so appropriated.[I] Thus, it has been held that a grantee could
tack the possession of an area on which an encroaching building stood to the possession of the grantor, although
the deed describes the boundary of the premises as running to the lot of the adjoining owner.[2] However, not-
withstanding the fact that structures encroach on land adjoining that described in the deed, special circumstances
may exclude any sound basis for tacking the possessions of seller and purchaser.[3]
[FNI] Wishart v. McKnight, 178 Mass. 356, 59 N.E. 1028 (1901); Lewis v. Idones, 280 A.D. 980, 116
N.Y.S.2d 382 (2d Dep't 1952); McCormick v. Sorenson, 58 Wash. 107,107 P. 1055 (1910).
[FN2] Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E. 239 (1920).
There was sufficient privity to allow tacking of period of possession because a brother ran a fence along
what he believed to be the correct property line, conveyed the property to the sister, who erected half of
the house on the disputed strip, the sister conveyed the property back to the brother, who in tum recon-
veyed it back to her, and the sister was put in actual possession of the disputed land adversely held by
the immediate grantor. Carpenter v. Huffman, 294 Ala. 189,314 So. 2d 65 (1975).
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AMJUR ADVERSE § 87 Page 2
3 Am. Jur. 2d Adverse Possession § 87
[FN3] Maremont v. Ovenu, 329 III. 374, 160 N.E. 572 (1928) (owner of land encroached on by eight
inches used wall of encroaching structure as common wall); Miller v. Roberson, 165 S.W.2d 469 (Tex.
Civ. App. Eastland 1942), writ refused w.o.m., (Jan. 6, 1943) (possession of a mortgagor held not to
tack to the possession of a purchaser from the bank that foreclosed on the mortgage).
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weStiaw.
AMJUR ADVERSE § 88
3 Am. Jur. 2d Adverse Possession § 88
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
a. In General
Topic Summary Correlation Table References
§ 88. Generally; substantial interruption
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>46.1
A,L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 § II.
Page 192 of 665
Page I
The statute of limitations ceases to run against a cause of action by the rightful owner of property on an in-
terruption of the continuity of possession of the adverse c1aimant.[l] The moment adverse possession is broken,
it ceases to be effectual, because the law then restores constructive possession to the owner.[2] The length of
time for which a substantial break or interruption in the possession exists is immaterial, because any substantial
interruption of the possession of an adverse claimant destroys continuity of possession and is fatal to a claim of
title by adverse possession.[3]
[FNI] Dowley v. Morency, 1999 ME 137,737 A.2d 1061 (Me. 1999); Goen v. Sansbury, 219 Md. 289,
149 A.2d 17 (1959); Trotter v. Gaddis and McLaurin, Inc., 452 So. 2d 453 (Miss. 1984).
[FN2] § 27.
[FN3] Horton v. Smith-Richardson Inv. Co., 81 Fla. 255, 87 So. 905 (1921).
As to temporary breaks or interruptions deemed insubstantial, see § 90.
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AMJUR ADVERSE § 88
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AMJUR ADVERSE § 88 Page 2
3 Am. Jur. 2d Adverse Possession § 88
END OF DOCUMENT
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AMJUR ADVERSE § 89
3 Am, JUL 2d Adverse Possession § 89
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
a. In General
Topic Summary Correlation Table References
§ 89. Common ownership
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=46.1
Page 194 of 665
Page I
The fact that two tracts of land come into common ownership interrupts an adverse possession of one of the
tracts that was begun before the common ownership.[I]
[FNI] Salazar v. Terry, 911 P.2d 1086 (Colo. 1996); Porterfield v. Spurgeon, 379 So. 2d 56 (La. C!.
App. 3d CiL 1979), writ denied, 381 So. 2d 1235 (La. 1980).
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AMJUR ADVERSE § 89
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AMJUR ADVERSE § 90
3 Am. Jur. 2d Adverse Possession § 90
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
a. In General
Topic Summary Correlation Table References
§ 90. Temporary or insubstantial interruption
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£;=44,45, 46.1
Page 195 of 665
Page I
A temporary break or interruption that is not of unreasonable duration does not destroy the continuity of the
adverse claimant's possession.[I] Thus, a temporary absence from the land, without an intention to abandon pos-
session, will not break the continuity ofpossession.[2]
If there is a break in the continuity of possession under the statute of limitations, the party claiming title
through adverse possession must show that it existed only for a reasonable period.[3]
Breaks in the continuity of possession in accordance with seasonal use generally do not destroy the neces-
sary continuous possession oflands used for seasonal activities.[4]
[FNI] Thompson v. Ratcliff, 245 S.W.2d 592 (Ky. 1952); Gammons v. Caswell, 447 A.2d 361 (R.t.
1982); Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191 (1951); Arney v. Hall, 123 Vt. 62, 181
A.2d 69 (1962); Bruch v. Benedict, 62 Wyo. 213,165 P.2d 561 (1946).
[FN2] Bradbury v. Dumond, 80 Ark. 82, 96 S.W. 390 (1906); Combs v. Ezell, 232 Ky. 602, 24 S.W.2d
301 (1930); Feinstein v. McGuire, 297 S.W.2d 513 (Mo. 1957); Hubbard v. Swofford Bros. Dry Goods
Co., 209 Mo. 495,108 S.W. 15 (1907).
A husband's adverse possession as against the claim of his wife to a joint interest in land was not inter-
rupted by his absence from the property for reasons of health, because he left his personal possessions
there, put his daughters in charge of the property, and forbade his wife to come into it. Cassas v. Cassas,
73 Wyo. 147,276 P.2d 456, 69 A.L.R.2d 187 (1954).
[FN3] Hardy v. Bumpstead, 41 S.W.2d 226, 76 A.L.R. 1488 (Tex. Comm'n App. 1931).
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Page 196 of 665
AMJUR ADVERSE § 90 Page 2
3 Am. Jur. 2d Adverse Possession § 90
[FN4] § 75.
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AMJUR ADVERSE § 90
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AMJUR ADVERSE § 91
3 Am. Jur. 2d Adverse Possession § 91
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
a. In General
Topic Summary Correlation Table References
Page 197 of 665
Page I
§ 91. Temporary or insubstantial interruption-Vacancy during transfer oftitle or change of tenants
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=45, 46.1
The continuity of possession by a claimant under adverse possession is not affected by a temporary and
reasonable vacancy of the premises occurring between the time of a conveyance by the adverse holder and the
entry into possession of the purchaser or a tenant.[l] However, if one adverse occupant sells the rights to anoth-
er, who does not enter on the land, and whose tenant merely repairs the improvements on the land, the chain of
adverse holding is broken by the interval between the adverse holding of the original occupant and that of a sub-
sequent grantee.[2]
The continuity of an adverse possession is not affected by a vacancy incident to a change in tenants,
provided the hiatus is not of unreasonable length when considered with reference to the purposes for which the
premises are adapted.[3] However, the burden is on the claimant to show that the interval between tenancies was
reasonable; and in the absence of evidence as to the length of such intervals, the court cannot assume that they
were short.[4] An unreasonable interval between possessions by successive tenants constitutes an interruption in
adverse possession, even if there was considerable difficulty in obtaining tenants.[5]
[FNI] Douglas v. Skelly Oil Co., 201 Miss. 23, 28 So. 2d 227 (1946); Hubbard v. Swofford Bros. Dry
Goods Co., 209 Mo. 495,108 S.W. 15 (1907); Bruch v. Benedict, 62 Wyo. 213,165 P.2d 561 (1946).
[FN2] Hellard v. Hubbard, 160 Ky. 304,169 S.W. 727 (1914).
[FN3] Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191 (1951); Bruch v. Benedict, 62 Wyo. 213,
165 P.2d 561 (1946).
As to whether adverse possession may be maintained through a tenant, see § 24.
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Page 198 of 665
AMJUR ADVERSE § 91 Page 2
3 Am. Jur. 2d Adverse Possession § 91
[FN4] Dunn v. Taylor, 102 Tex. 80, 113 S.W. 265 (1908).
[FN5] Reeves v. Porta, 173 Or. 147, 144 P.2d 493 (1944); Dunn v. Taylor, 102 Tex. 80, 113 S.W. 265
(1908).
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AMJUR ADVERSE § 92
3 Am. Jur. 2d Adverse Possession § 92
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
a. In General
Topic Summary Correlation Table References
§ 92. Attornment by tenant; tenant's recognition of title in third person
West's Key Number Digest
West's Key Number Digest, Adverse Possession €;:;;;;>46.1, 50
A. L.R. Library
Page 199 of 665
Page 1
Adverse possession of landlord as affected by tenant's recognition of title of third person, 38 A.L.R. 2d 826
§§ 2, 3.
Under the general rule that attornment to a third party (acceptance of a third party as the landlord) does not
affect a tenant's relationship with the original landlord or entitle a tenant to deny or dispute the original land-
lord's title,[1] a tenant's wrongful attornment to a third person is generally ineffectual in itself to affect the con-
tinuity of the landlord's possession.[2] Thus, subject to certain conditions and exceptions, the acknowledgment
or recognition of the title of a third person by one occupying land as the tenant of an adverse claimant, without
the latter's knowledge or consent, does not interrupt the continuity of the adverse possession.[3] However, if a
tenant attorns to an owner who lacks knowledge of the landlord's claim, the possession by the tenant then be-
comes that of the owner, and it is broken for the landlord.[4] Also, if the landlord has or acquires notice of the
tenant's recognition of the title of another and takes no action to protect his or her interest, the continuity of ad-
verse possession is interrupted.[5]
[FNI]49 Am. Jur. 2d, Landlord and Tenant § 923.
[FN2] Eckert v. Miller, 57 Ariz. 94, III P.2d 60 (1941); Cobb v. Robertson, 99 Tex. 138,87 S.W. 1148
(1905).
As to the effect of the relationship of landlord and tenant on the right of a tenant to claim adversely to
the landlord, see §§ 197 et seq.
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Page 200 of 665
AMJUR ADVERSE § 92 Page 2
3 Am. Jur. 2d Adverse Possession § 92
[FN3] Kimble v. Willey, 204 F.2d 238, 38 A.L.R.2d 814 (8th Cir. 1953) (applying Arkansas law); Ells-
worth v. Eslick, 91 Kan. 287, 137 P. 973 (1914); Jackson v. Ward, 292 S.W. 7 (Mo. 1927); Cobb v.
Robertson, 99 Tex. 138, 87 S.W. 1148 (1905); Point Mountain Coal & Lumber Co. v. Holly Lumber
Co., 71 W. Va. 21, 75 S.E. 197 (1912).
[FN4] Kirby Lumber Corp. v. Laird, 231 F.2d 812 (5th Cir. 1956).
[FN5] Van Deventer v. Lott, 172 F. 574 (C.C.E.D. N.Y. 1909), affd, 180 F. 378 (C.C.A. 2d Cir. 1910)
(applying law of New York); Custer v. Hall, 71 W. Va. 119,76 S.E. 183 (1912).
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AMJUR ADVERSE § 92
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AMJUR ADVERSE § 93
3 Am. Jur. 2d Adverse Possession § 93
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
a. In General
Topic Summary Correlation Table References
§ 93. Acts of trespassers or intruders
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>48
Page 20 I of 665
Page I
A mere casual or occasional trespass on land by a stranger to the title does not interrupt the continuity of an
adverse possession. [I]
[FNI] Turnipseed v. Moseley, 248 Ala. 340,27 So. 2d 483, 170 A.L.R. 882 (1946) (occasional or des-
ultory acts of entry and cutting of timber from a swampy and densely wooded tract of land by an adjoin-
ing landowner without color of title to the woodland, being neither exclusive nor continuous); Batcheld-
er v. Robbins, 95 Me. 59, 49 A. 210 (1901) (entries to cultivate small patches of ground); Bloodsworth
v. Murray, 138 Md. 631, 114 A. 575,22 A.L.R. 1450 (1921) (use of land by trappers); Dorntee v. Ly-
ons, 224 Mass. 256, 112 N.E. 610 (1916) (temporary obstruction, consisting of barrels with planks
across the top, placed across a right-of-way); Bruch v. Benedict, 62 Wyo. 213,165 P.2d 561 (1946).
The straying of cattle on the premises did not interrupt the continuity of a c1aimanfs adverse posses-
sion. Norgard v. Busher, 220 Or. 297, 349 P.2d 490,80 A.L.R.2d 1161 (1960).
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AMJUR ADVERSE § 93
END OF DOCUMENT
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AMJUR ADVERSE § 94
3 Am. Jur. 2d Adverse Possession § 94
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
a. In General
Topic Summary Correlation Table References
§ 94, Mortgage foreclosure
West's Key Number Digest
West's Key Number Digest, Adverse Possession <8;=48, 52
Page 202 of 665
Page I
The continuity of possession of an adverse claimant is not interrupted by a mortgage foreclosure action and
sale of the premises pursuant to the judgment in such an action.[I] However, after the foreclosure of a mortgage
and issuance of a sheriffs certificate of sale to the purchaser, the mortgagor does not have color of title for ad-
verse possession purposes.[2]
[FNI] Lewis v. Idones, 280 A.D. 980,116 N.Y.S.2d 382 (2d Dep't 1952).
[FN2] Bell v. Gussenhoven, 132 Mont. 346, 318 P.2d 251 (1957).
As to color of title, generally, see §§ 123 et seq.
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weStiaw.
AMJUR ADVERSE § 95
3 Am. Jur. 2d Adverse Possession § 95
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
a. In General
Topic Summary Correlation Table References
§ 95. Acquisition of property by a governmental entity; tax forfeitures
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 4 7 , 52
A.L.R. Library
Page 203 of 665
Page I
Tax sales or forfeitures by or to governmental units as interrupting adverse possession, 50 A.L.R. 2d 600 §§
3 to 5.
Title by adverse possession generally cannot be acquired to lands owned by governments or their subdivi-
sions and agencies.[1] Because the statute of limitations does not run against such entities, the acquisition of
property by a governmental entity ordinarily will interrupt any claim of adverse possession.[2] Thus, it has been
held that forfeiture of title to a governmental entity for the nonpayment of taxes suspends the operation of the
statute of limitations,[3] In some cases in which there has been a finding that limitations do not run against the
state during the period of a forfeiture of the property for nonpayment of taxes, the rationale has been that a valid
tax deed fTom the state commences a new chain of title, fTee of all clouds and encumbrances.[4]
However, it has also been held that such forfeiture does not suspend the statute of limitations.[5] If the gov-
ernment's interest was considered to be in the nature of a lien, or something less than full title, adverse posses-
sion has been held to continue after forfeiture, the theory sometimes being advanced that since a governmental
title was not involved there was no violation of the rule that time does not run against the government.[6]
[FN I] §§ 268 et seq.
[FN2] Wood v. Mayo, 240 La. 109, 121 So. 2d 503 (1960); Lyndel Corp. v. Loria, 77 Misc. 2d 1066,
355 N.Y.S.2d 699 (City Civ. Ct. 1973).
[FN3] Harrison v. Everett, 135 Colo. 55, 308 P.2d 216 (1957); Greene v. Esquibel. 58 N.M. 429, 272
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AMJUR ADVERSE § 95 Page 2
3 Am. Jur. 2d Adverse Possession § 95
P.2d 330 (1954); Dunlap v. Mayer, 1959 OK 125,341 P.2d 258 (Okla. 1959).
[FN4] Harrison v. Everett, 135 Colo. 55, 308 P.2d 216 (1957); Lippert v. Jung, 366 Md. 221, 783 A.2d
206 (2001); Kasner v. Wilson, 1950 OK 58, 202 Okla. 497, 215 P.2d 833 (1950).
[FN5] Grayson v. Robinson, 240 Miss. 59,126 So. 2d 247 (1961).
A claim of title by adverse possession under a parol gift of land, notwithstanding the execution and re-
cording of a tax deed to a third person four years after the parol gift, was upheld, because the undis-
puted evidence showed that the claimant had been in continuous and exclusive possession for four years
at the time of the execution and recording of the tax deed and remained in such continuous and exclus-
ive possession for more than 15 years thereafter before any claim of right was asserted against him.
There was no room for a claim of constructive possession under the tax deed and the claimant had the
right to defend against the tax sale. Wallis v. Clinkenbeard, 214 Iowa 343, 242 N.W. 86 (1932).
Even though the sale of land for taxes ordinarily ends adverse possession at that time, if no change in
the character of the possession by the claimant appears after the sale, and no ouster is attempted, title of
the claimant ripens by adverse possession. Grayson v. Robinson, 240 Miss. 59, 126 So. 2d 247 (1961).
[FN6] Rupley v. Fraser, 132 Minn. 311,156 N.W. 350 (1916).
A forfeiture of land to the commonwealth for nonpayment of taxes, being intended merely to create an
indefeasible lien for their collection, does not constitute a break in the required continuity of adverse
possession. Thomas v. Young, 196 Va. 1166,87 S.E.2d 127,50 A.L.R.2d 592 (1955).
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AMJUR ADVERSE § 95
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AMJUR ADVERSE § 96
3 Am. Jur. 2d Adverse Possession § 96
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
a. In General
Topic Summary Correlation Table References
§ 96. Death of the record owner
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=55
A.L.R. Library
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6 § I I [(e)].
Page 205 of 665
Page I
As a general rule, the continuity of an adverse possession of real property that began during a record own-
er's lifetime is not interrupted by death of the owner; the statute of limitations continues to run against the heirs[
I] and all other persons.[2] Thus, adverse possession by a donee under a parol gift of land is not interrupted by
the donor's death.[3]
Observation:
If the statute of limitations has begun to run in favor of one in adverse possession against an owner who dies
leaving heirs who are minors, their disability of infancy does not ordinarily affect the operation of the statute,
because the disability is subsequent to the commencement of the running oflimitations.[4]
[FNI] Anderson v. Shelton, 92 N.W.2d 166,73 A.L.R.2d 1087 (N.D. 1958).
[FN2] Leggett v. Norman, 192 Miss. 494, 6 So. 2d 578 (1942); Hubbard v. Swofford Bros. Dry Goods
Co., 209 Mo. 495,108 S.W. 15 (1907).
[FN3] Lynch v. Lynch, 239 Iowa 1245, 34 N.W.2d 485 (1948); Delano v. Air, 157 Ky. 369, 163 S.W.
216 (1914).
[FN4] § 174.
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AMJUR ADVERSE § 96 Page 2
3 Am. Jur. 2d Adverse Possession § 96
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AMJUR ADVERSE § 97
3 Am. Jur. 2d Adverse Possession § 97
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
b. By Claimant
(I) In General; Abandonment
Topic Summary Correlation Table References
§ 97. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£:=46.1, 53
Page 207 of 665
Page I
The continuity of an adverse claimant's possession is necessarily destroyed by abandonment of the property,
or of the adverse claim to the property, before the expiration of the limitation period.[I] Thus, if an adverse
claimant under color of title takes possession and holds for a time adversely, but vacates before the statutory
period expires, the owner will be regarded as in constructive possession from that moment by reason of the legal
title, the adverse possession of the claimant is at an end, and the statute ceases to run in his or her favor.[2]
The intention of the claimant is very important:to constitute a sufficient abandonment to destroy the con-
tinuity of adverse possession, there must be an intention on the part of the claimant to relinquish the claim of
ownership.[3] If the attendant circumstances are such that a reasonable and prudent person would not be induced
to suppose that the possession has been abandoned, it cannot be insisted that the running of the statute has been
interrupted.[4] The possession cannot be said to have been abandoned if the property is occupied, in right of the
claimant, by an agent, employee,[5] or tenant.[6]
A mere temporary absence of the adverse claimant, without an intention to abandon possession, will not
break the continuity of possession,[7] nor will a temporary vacancy of the property due to a change of tenants.[8
] Also, the absence of the adverse claimant from the state in which the land lies does not necessarily interrupt
the continuity ofpossession.[9]
The enclosure of land is some evidence of an adverse claim, and, in some instances, may be sufficient basis
for establishing dominion over the property,[10] and a mere temporary removal of such an enclosure does not
evidence an abandonment that would interrupt the continuity of the claimant's possession.[II]
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Page 208 of 665
AMJUR ADVERSE § 97 Page 2
3 Am. Jur. 2d Adverse Possession § 97
[FNI] Alaska Nat. Bank v. Linck, 559 P.2d 1049 (Alaska 1977); Massee v. Schiller, 237 Ark. 809,376
S.W.2d 558 (1964); Kash v. Lewis, 224 Ky. 679, 6 S.W.2d 1098 (1928).
[FN2] Goen v. Sansbury, 219 Md. 289,149 A.2d 17 (1959).
As to constructive possession oflegal owner, see § 27.
[FN3] Bruch v. Benedict, 62 Wyo. 213,165 P.2d 561 (1946).
As to abandoned property, generally, see I Am. Jur. 2d, Abandoned, Lost and Unclaimed Property.
[FN4] Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191 (1951).
[FN5] Combs v. Ezell, 232 Ky. 602, 24 S.W.2d 301 (1930).
[FN6] Combs v. Ezell, 232 Ky. 602, 24 S.W.2d 301 (1930).
[FN7] § 90.
[FN8] § 91.
[FN9] McCaughn v. Young, 85 Miss. 277, 37 So. 839 (1905).
[FN I 0] §§ 36 to 40.
[FNII] Davies v. Wickstrom, 56 Wash. 154, 105 P. 454 (1909).
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Westlaw.
AMJUR ADVERSE § 98
3 Am. Jur. 2d Adverse Possession § 98
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
b. By Claimant
(I) In General; Abandonment
Topic Summary Correlation Table References
§ 98. Failure to repair or replace enclosure
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=46.1
Page 209 of 665
Page I
Adverse possession is not necessarily interrupted by permitting fences to fall into disrepair.[l] Thus, con-
tinuity of possession is not affected by the fact that fences on a tract of land that is often covered by tide become
dilapidated and in bad repair.[2]
[FN I] Norgard v. Busher, 220 Or. 297, 349 P.2d 490, 80 A.L.R.2d 1161 (1960).
As to an enclosure as showing dominion over the land, see §§ 36 to 40.
[FN2] Davies v. Wickstrom, 56 Wash. 154, 105 P. 454 (1909).
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AMJUR ADVERSE § 98
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AMJUR ADVERSE § 99
3 Am. Jur. 2d Adverse Possession § 99
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
b. By Claimant
(I) In General; Abandonment
Topic Summary Correlation Table References
§ 99. Interruption of cultivation
West's Key Num ber Digest
West's Key Number Digest, Adverse Possession <C=46.1
Page 210 of 665
Page I
If the cultivation of land has been relied on as constituting adverse possession, the fact that there have been
temporary breaks in cultivation does not destroy the requisite continuity.[I]
It has been held that a failure to cultivate for one year does not interrupt adverse possession.[2] In other
cases, however, failure to cultivate the land for one year has been fatal to the adverse c1aimant.[3]
[FN I] Lewes Trust Co. v. Grindle, 53 Del. 396, 170 A.2d 280 (1961); Douglas v. Skelly Oil Co., 20 I
Miss. 23, 28 So. 2d 227 (1946).
[FN2] Bradbury v. Dumond, 80 Ark. 82, 96 S. W. 390 (1906).
[FN3] Wilson v. Nugent, 91 S.W. 241 (Tex. Civ. App. 1906).
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AMJUR ADVERSE § 99
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AMJUR ADVERSE § 100
3 Am. Jur. 2d Adverse Possession § 100
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
b. By Claimant
(I) In General; Abandonment
Topic Summary Correlation Table References
§ 100. Enforced abandonment
West's Key Number Digest
West's Key Number Digest, Adverse Possession cC=46.1, 53
Page 211 of665
Page I
An adverse c1aimant must not yield or surrender possession under the pressure of any legal procedure insti-
tuted to oust the claimant that can be successfully resisted; if the claimant does yield, and an entry adverse to the
claimant is made, the continuity of possession will be broken.[I] However, a possession will not be regarded as
interrupted by force and violence if it is promptly regained by legal methods.[2]
If the actual occupancy of land is temporarily prevented by floods or fire, the possessor has a reasonable
time after the flood or fire has ceased to resume possession of the land to avoid a discontinuance of adverse pos-
session during the time that occupancy was so interrupted.[3] For example, if land is subject to overflow during
periods of high water, the failure of the claimant to use the land for grazing during those periods does not inter-
rupt the continuity of possession if the claimant continues the use of the land when feasible.[4]
[FNl] Horton v. Smith-Richardson Inv. Co., 81 Fla. 255, 87 So. 905 (1921).
As to legal action by the owner to regain possession as interrupting adverse possession, see §§ 109 et seq.
[FN2] Horton v. Smith-Richardson Inv. Co., 81 Fla. 255, 87 So. 905 (1921).
[FN3] Thomas v. Spencer, 66 Or. 359,133 P. 822 (1913).
[FN4] Burns v. Curran, 282 Ill. 476, 118 N.E. 750 (1918); Britt v. Houser, 171 Ky. 494, 188 S.W. 628
(1916); Halsey v. Humble Oil & Refining Co., 66 S.W.2d 1082 (Tex. Civ. App. Beaumont 1933), writ
dismissed.
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AMJUR ADVERSE § 100 Page 2
3 Am. Jur. 2d Adverse Possession § 100
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AMJUR ADVERSE § 100
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AMJUR ADVERSE § 101
3 Am. Jur. 2d Adverse Possession § 101
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
b. By Claimant
(2) Recognition of Title in Another
Topic Summary Correlation Table References
§ IO\. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession C;;;>SO
A.L.R. Library
Page 213 of665
Page I
Adverse possession of land by personal representative as against deceased owner's heirs or devisees, 73
A.L.R.2d 1097 § II.
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 § II(i).
The title acquired by adverse possession is equivalent to that acquired in any other way, and the mere recog-
nition of title in another, thereafter, does not divest the adverse claimant of the rights acquired.[I] However, dur-
ing the running of the limitation period, if the claimant holds possession subordinate to another person, or ad-
mits of the existence of a superior title, the possession will not be deemed to be adverse, regardless of how long
the possession is continued. [2]
The appointment of one in adverse possession as administrator of the record title owner does not necessarily
suspend the adverse possession.[3] Thus, if the adverse claimant never took possession of the land in an official
capacity as administrator, did not consider it a part of the estate, did not list it as an asset, paid all the taxes, re-
tained the proceeds of the land, and treated it as his own without knowledge that the decedent's heirs had an in-
terest in it, the adverse claimant's appointment as administrator of the owner's estate does not interrupt the ad-
verse possession. [4]
An heir's adverse claim, commenced before the decedent's death, is not interrupted by his or her inheritance
of a part interest in the property; the heir still remains in adverse possession of the other part interest as against
the coheirs.[S]
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Page 214 of665
AMJUR ADVERSE § 101 Page 2
3 Am. Jur. 2d Adverse Possession § 101
[FNI]§249.
[FN2] Rye v. Baumann, 231 Ark. 278, 329 S.W.2d 161 (1959); Jacobi v. Jacobi, 345 III. 518, 178 N.E.
88 (1931); Howard v. Twibell, 179 Ind. 67, 100 N.E. 372 (1913); Fordson Coal Co. v. Mills, 234 Ky.
64,27 S.W.2d 382 (1930); Shanks v. Collins, 1989 OK 115,782 P.2d 1352 (Okla. 1989); Central Pac.
Ry. Co. v. Tarpey, 51 Utah 107, 168 P. 554, I A.L.R. 1319 (1917).
An adverse claimant to a disputed parcel located on an unimproved parkway acknowledged the superior
interest or title of the city when the claimant applied for a street use permit in the property and paid a
fee for that use. Jackson v. Pennington, II Wash. App. 638, 525 P.2d 822 (Div. I 1974).
As to attornment by a tenant as interrupting the adverse possession of the landlord, see § 92.
[FN3] Anderson v. Shelton, 92 N.W.2d 166,73 A.L.R.2d 1087 (N.D. 1958).
[FN4] Anderson v. Shelton, 92 N.W.2d 166, 73 A.L.R.2d 1087 (N.D. 1958).
As to adverse possession by executor or administrator, generally, see § 237.
[FN5] Anderson v. Shelton, 92 N.W.2d 166,73 A.L.R.2d 1087 (N.D. 1958).
As to adverse possession against coheirs, generally, see § 239.
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AMJUR ADVERSE § 102
3 Am. Jur. 2d Adverse Possession § 102
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
b. By Claimant
(2) Recognition of Title in Another
Topic Summary Correlation Table References
§ 102. Claiming as tenant; taking lease or paying rent
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 5 0
Page 215 of665
Page I
The continuity of possession by an adverse claimant is interrupted if the claimant ceases to claim the land in
fee and begins to claim it as a tenant.[l] Even an offer by an adverse claimant to lease or rent the premises may
be evidence of recognition of title in another,[2] and the taking of a lease by an adverse claimant is generally re-
garded as a recognition of title in another that will interrupt the running of the statute of limitations.[3] To have
this effect, however, it is necessary that the claimant intentionally and knowingly lease the property.[4]
It is necessary that the lease be a valid one to interrupt the possession; an oral lease that is ineffective be-
cause of the statute of frauds does not deprive the lessor of a right to bring an action to recover possession of
property.[5]
[FN1] Holmes v. Johnson, 324 Mass. 450, 86 N.E.2d 924 (1949).
[FN2] Northern Pac. Ry. Co. v. Cash, 67 Mont. 585,216 P. 782 (1923); Houston Oil Co. of Texas v.
Pullen, 272 S. W. 439 (Tex. Comm'n App. 1925).
[FN3] Woods v. Garrard, 282 Ky. 233, 138 S.W.2d 325 (1940); Lucas v. New Hebron Bank, 181 Miss.
762, 180 So. 611 (1938); Security Savings & Trust Co. v. Ogden, 123 Or. 370,261 P. 69 (1927); GeTies
v. Magness, 31 S.W.2d 167 (Tex. Civ. App. Amarillo 1930).
[FN4] Sowa v. Schaefer, 38 Ohio App. 522, 10 Ohio L. Abs. 457, 175 N.E. 745 (8th Dist. Cuyahoga
County 1931).
[FN5] Manos v. Day Cleaners & Dyers, Inc., 91 Ohio App. 361, 48 Ohio Op. 455, 108 N.E.2d 347 (9th
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AMJUR ADVERSE § 102 Page 2
3 Am. Jur. 2d Adverse Possession § 102
Dist. Summit County 1952).
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AMJUR ADVERSE § 103
3 Am. Jur. 2d Adverse Possession § 103
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
b. By Claimant
(2) Recognition of Title in Another
Topic Summary Correlation Table References
§ 103, Prosecution oflegal action
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>50
Page 217 of 665
Page I
The bringing by a claimant in adverse possession of land of an action involving title to the land that is based
on the existence of a right in another is such recognition of that right as will arrest the running of the statute of
limitations in favor of the occupant and against that right.[l] For example, instituting an action for specific per-
formance of a contract to convey real estate is a recognition of the title of defendant, and some subsequent un-
equivocal act or declaration evidencing an adverse claim is necessary to again start the statute running in favor
of the one instituting such suit.[2] However, it is only as to the right claimed by the defendant in an action by the
claimant in possession that the running of the statute is arrested.[3]
However, an action to determine conflicting claims brought by an occupying claimant does not arrest the
running of the statute as between the claimant and the defendant in such action if an answer is not filed and a
right hostile to the claimant is not asserted in the action.[4]
It has been held that the bringing of an action to quiet title by a person in possession of land and claiming
title by adverse possession does not interrupt the adverse character of his or her possession.[5] However, it has
also been held that a claim of title by adverse possession fails if possession is interrupted by the claimant's filing
of an action to quiet title before the statutory period has elapsed.[6]
[FNI] Johnson v. Johnson, 1938 OK 194, 182 Okla. 293, 77 P.2d 745 (1938).
[FN2] Central Pac. Ry. Co. v. Tarpey, 51 Utah 107, 168 P. 554, I A.L.R. 1319 (1917).
[FN3] Weiner v. Steams, 40 Utah 185, 120 P. 490 (1911).
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AMJUR ADVERSE § 103 Page 2
3 Am. Jur. 2d Adverse Possession § 103
[FN4] Chapin v. Letcher, 93 N. W.2d 415 (N.D. 1958); Weiner v. Steams, 40 Utah 185, 120 P. 490 (1911).
[FN5] Chapin v. Letcher, 93 N.W.2d 415 (N.D. 1958).
The fact that the adverse possessors had filed a 1969 suit against the record owner's predecessor in title,
obtained a temporary restraining order restraining the predecessor from interfering with the adverse
possessors' peaceful use, possession, and enjoyment of the land, and ultimately took a non-suit in 1974,
did not suspend the ten-year limitation period because the 1969 suit was neither adverse to the one
claiming under adverse possession, nor prosecuted to a final judgment. Temple Eastex Inc. v. Busby,
696 S.W.2d 609 (Tex. App. Beaumont 1985), writ refused n.r.e., (Jan. 8, 1986).
[FN6] Trede v. Superior Court of City and County of San Francisco, 21 Cal. 2d 630, 134 P.2d 745 (1943).
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AMJUR ADVERSE § 103
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AMJUR ADVERSE § 104
3 Am, JUL 2d Adverse Possession § 104
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, l 0" Bill Lindsley, lD., and Eric Surette, J,D,
II. Elements and Requisites
G. Continuity of Possession
3, Interruption of Continuity
b, By Claimant
(2) Recognition of Title in Another
Topic Summary Correlation Table References
§ 104. Purchasing or bargaining for outstanding title, interest, or claim
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£:=50
Page 219 of665
Page I
A person in adverse possession of land generally may fortify that right by acquiring any outstanding interest
without weakening the force or effect of the possession,[I] Thus, as a general rule, the continuity of the posses-
sion of an adverse claimant is not interrupted by the claimant's purchasing or bargaining for an outstanding
title,[2] even if the occupant was claiming under color of title,[3] In buying what is outstanding, there is nothing
partaking of the nature of an acknowledgment of the superiority of that title, or an abandonment of one's former
claim,[4] A person may very well deny the validity of an outstanding claim or title, and yet choose to buy peace
at a small price, rather than be at great expense and annoyance in litigating it,[5] As to others than the record
owner, the purchase of an outstanding title, interest, or claim to land by an adverse holder wiJI not of itself inter-
rupt the continuity of adverse possession of the land, [6]
However, an offer to purchase the legal title, or an acceptance of a conveyance of title, as distinguished
from a mere outstanding claim or interest, is a recognition of that title,[7] Although efforts to obtain deeds from
other claimants to the property do not disprove the hostile character of a possession, efforts to buy the property
from the record owner constitute an acknowledgment of the record owner's superior title, and thus disprove the
adverse holding, because there has been no claim of right,[8]
Caution:
The fact that a claimant's request to the record owner for a deed is made after the full period of adverse posses-
sion has run does not preclude consideration of that evidence for the purpose of determining whether the
claimant had been in hostile possession of the property during the period,[9]
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Page 220 of 665
AMJUR ADVERSE § 104 Page 2
3 Am. Jur. 2d Adverse Possession § 104
[FNI] Dalton v. Johnson, 320 S.W.2d 569 (Mo. 1959).
[FN2] Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984); Calkins v. Kousouros, 72 Idaho 150, 237 P.2d
1053 (1951); Rozmarek v. Plamondon, 419 Mich. 287, 351 N.W.2d 558 (1984); Alsworth v. Richmond
Cedar Works, 172 N.C. 17,89 S.E. 1008 (1916); Meaders v. Moore, 134 Tex. 127, 132 S.W.2d 256,
125 A.L.R. 817 (Comm'n App. 1939); Clithero v. Fenner, 122 Wis. 356, 99 N. W. 1027 (1904).
[FN3] Bryant v. Prewitt, 132 Ky. 799, 117 S.W. 343 (1909); John L. Roper Lumber Co. v. Richmond
Cedar Works, 168 N.C. 344, 84 S.E. 523 (1915).
[FN4] Hallowell v. Borchers, 150 Neb. 322, 34 N.W.2d404 (1948).
[FN5] Ripley v. Miller, 165 Mich. 47, 130 N.W. 345 (1911); Dozier v. Krmpotich, 227 Minn. 503, 35
N. W.2d 696 (1949); Hallowell v. Borchers, 150 Neb. 322, 34 N. W.2d 404 (1948).
[FN6] John L. Roper Lumber Co. v. Richmond Cedar Works, 168 N.C. 344, 84 S.E. 523 (1915); Mead-
ers v. Moore, 134 Tex. 127, 132 S.W.2d 256,125 A.L.R. 817 (Comm'n App. 1939).
[FN7] Tidwell v. Strickler, 457 So. 2d 365 (Ala. 1984); Munroe v. Pere Marquette Ry. Co., 226 Mich.
158, 197 N. W. 566 (1924); Myers v. Beam, 551 Pa. 670, 713 A.2d 61 (1998) (request for a quitclaim deed).
Evidence that the adverse claimants cut timber on the disputed land, that they occasionally pastured
cattle on it, and that they ran four strands of wire through a reed brake by nailing them to trees, was in-
sufficient to constitute the adverse, hostile and exclusive occupancy necessary to sustain a claim to the
property based on adverse possession in view of evidence of the claimant's attempt to purchase the
property from the record title holder on two occasions. People's Realty & Development Corp. v. Sulli-
van, 336 So. 2d 1304 (Miss. 1976).
[FN8] Kerlin v. Tensaw Land & Timber Co., Inc., 390 So. 2d 616 (Ala. 1980).
A person could not claim title to the land of an heir by adverse possession because, within the statutory
period, he recognized the title of the heir by accepting a conveyance from him of his interest. Carter v.
Thompson, 167 Ark. 272, 267 S.W. 790, 38 A.L.R. 1053 (1925).
[FN9] Gonthier v. Horne, 576 A.2d 745 (Me. 1990).
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AMJUR ADVERSE § 104
END OF DOCUMENT
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AMJUR ADVERSE § 105
3 Am. Jur. 2d Adverse Possession § 105
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
b. By Claimant
(2) Recognition of Title in Another
Topic Summaty Correlation Table References
§ 105. Purchasing tax title or lease; acceptance of money to redeem property
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=50
A.L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6.
Page 221 of 665
Page I
The purchase of a tax title or lease by the occupant of the taxed premises, which were assessed in the name
of other parties, does not interrupt the continuity of such occupant's adverse possession.[I] Such a purchase is
not such recognition of the rightful owners title that would break the period of adverse possession.[2]
However, a later acceptance of money paid by the record owner to redeem the property would be a recogni·
tion of the owner's superior title, and would therefore interrupt the continuity ofpossession.[3]
[FNI] Merritt v. Westerman, 165 Mich. 535, 131 N.W. 66 (1911); Monnot v. Murphy, 207 N.Y. 240,
100N.E. 742(1913).
[FN2] Monno! v. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913).
[FN3] Monnot v. Rudd, 139 A.D. 651,124 N.Y.S. 210 (1st Dep't 1910).
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AMJUR ADVERSE § 105
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AMJUR ADVERSE § 105 Page 2
3 Am. Jur. 2d Adverse Possession § 105
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AMJUR ADVERSE § 106
3 Am. Jur. 2d Adverse Possession § 106
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
c. By Owner
(I) In General; Entry Effecting an Ouster of the Claimant
Topic Summary Correlation Table References
§ \06, Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=47
A.L.R. Library
Page 223 of 665
Page I
Validity and construction of statutes providing for reversion of mineral estates for abandonment or nonuse,
16 A.L.R. 4th 1029 §§ 5, 6.
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6 § II.
An adverse possession can be interrupted by entry of the owner and ouster of the claimant by the owner.[ I]
The running of the statute of limitations will be tolled by the owner's entty on the land if the entry is accompan-
ied with an explicit declaration of purpose to repossess the land.[2]
It has been held that intent, as expressed or as evidenced by acts of ownership, governs the effect of the
entry; the mere act of going on the land is not enough.[3] To regain the lost possession, the owner must assert a
claim to the land or perform some act that would reinstate the owner in possession.[4] However, it has also been
held that it is presumed that, because a use of land by one who has record title is an exercise of his or her right to
enjoy it, such use interrupts the continuity of adverse possession by another.[5] Thus, an owner's use of land oc-
cupied by another is an exercise of the right of ownership that would interrupt the continuity of an adverse pos-
session.[6]
A verbal[7] or written[8] protest by the owner against occupancy of land by an adverse holder, without an
actual entry or an action by the owner, is without effect, because the owner is still disseised.
If an owner goes into occupation of a part of the land that is being claimed adversely under color of title, the
running of the statute of limitations will be stopped as to so much of the land as is constructively possessed by
the adverse claimant under color of title, and will be restricted to that in actual possession by the claimant.[9]
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Page 224 of 665
AMJUR ADVERSE § 106 Page 2
3 Am. Jur. 2d Adverse Possession § 106
An owner cannot interrupt an adverse possession secretly.[IO] Thus, an entry by stealth, under circum-
stances showing that the owner claimed no right to enter, or an entry for purposes other than those connected
with a right to enter, does not break the continuity of the adverse possession. [I I]
[FNI] Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984); American Nat. Bank of Beaumont v. Wingate,
266 S.W.2d 934 (Tex. Civ. App. Beaumont 1953), writ refused n.r.e.
[FN2] Chastang v. Chastang, 141 Ala. 451, 37 So. 799 (1904); Armstrong v. Payne, 188 Cal. 585,206
P. 638 (1922); Nelson v. Johnson, 189 Ky. 815, 226 S.W. 94 (1920).
[FN3] Armstrong v. Payne, 188 Cal. 585, 206 P. 638 (1922); Hightower v. Pendergrass, 662 S.W.2d
932 (Tenn. 1983).
As to the sufficiency of acts of entry, see § 107.
[FN4] Lambert v. State, 211 Miss. 129,51 So. 2d 201 (1951).
[FN5] Harlow v. Miller, 147 Vt. 480, 520 A.2d 995 (1986).
[FN6] Carnevale v. Dupee, 783 A.2d 404 (R.I. 2001).
[FN7] Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984); Sowa v. Schaefer, 38 Ohio App. 522, 10 Ohio
L. Abs. 457,175 N.E. 745 (8th Dist. Cuyahoga County 1931).
[FN8] Palac v. DiSanto, 424 Pa. Super. 277, 622 A.2d 378 (1993).
[FN9] Goen v. Sansbury, 219 Md. 289, 149 A.2d 17 (1959); Schlossnagle v. Kolb, 97 Md. 285, 54 A.
1006 (1903).
As to constructive possession of an adverse claimant, see § 27.
[FNIO] American Nat. Bank of Beaumont v. Wingate, 266 S.W.2d 934 (Tex. Civ. App. Beaumont
1953), writ refused n.r.e.
[FNII] Armstrong v. Payne, 188 Cal. 585, 206 P. 638 (1922); American Nat. Bank of Beaumont v.
Wingate, 266 S.W.2d 934 (Tex. Civ. App. Beaumont 1953), writ refused n.r.e.
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AMJUR ADVERSE § 107
3 Am. JUL 2d Adverse Possession § 107
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
c. By Owner
(I) In General; Entry Effecting an Ouster of the Claimant
Topic Summary Correlation Table References
§ 107, Sufficiency of acts of entry
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=47
A,L.R. Library
Page 225 of 665
Page I
Owner's surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse
possession, 76 A.L.R. 3d 1202.
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 §§ 10, I!.
The running of the statute of limitations will be tolled by the owner's entry, together with such open and no-
torious acts of dominion as make manifest the purpose to resume possession of the land.[1] The conduct claimed
by an owner to work an intenuption of adverse possession must be such as would put a reasonably prudent per-
son on notice that he or she actually has been ousted.[2]
Not every act by the owner related to the land interrupts actual adverse possession.[3] For example, the
posting by the record owner of a "notice to prevent easements" under a statute, while constituting an act of own-
ership and evidence bearing on the continuity of an adverse possession, does not, as a matter of law, interrupt
the possession.[4] Acts of the record owner to ascertain the true condition of title are not sufficient to interrupt
the running of the adverse possession.[5] Also, a mere casual entry for a limited purpose by the record owner is
not necessarily sufficient to destroy adverse possession.[6]
Occasional hunting on the property by the record owner is insufficient to establish corporeal possession of
the property or to interrupt the claimant's possession.[7]
Whether making a survey on disputed property will interrupt continuity of adverse possession sufficiently to
toll the running of limitations must necessarily be decided in each case according to the circumstances, survey-
ing does not interrupt adverse possession as matter oflaw.[8]
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3 Am. Jur. 2d Adverse Possession § 107
The owner
1
s execution of an oil and gas lease does not defeat a claim of adverse possession by a possessor
of the surface, if there are no actual entries onto the land in connection with the lease.[9]
[FNI] Annstrong v. Payne, 188 Cal. 585,206 P. 638 (1922); Nelson v. Johnson, 189 Ky. 815,226 S.W.
94 (1920); Bernard v. Nantucket Boys' Club, Inc., 391 Mass. 823, 465 N.E.2d 236 (1984); American
Nat. Bank of Beaumont v. Wingate, 266 S. W.2d 934 (Tex. Civ. App. Beaumont 1953), writ refused n.r.e.
Because both the owners of the legal title to swampy woodland and the adjoining owners exercised sim-
ilar acts of possession by desultory cutting of wood from the land and by occasional sales of timber, the
possessory acts of the owners of the legal title were an interruption of the continuous adverse posses-
sion of the adverse claimant, and tolled the repose of their title. Turnipseed v. Moseley, 248 Ala. 340,
27 So. 2d 483, 170 A.L.R. 882 (1946).
[FN2] American Nat. Bank of Beaumont v. Wingate, 266 S.W.2d 934 (Tex. Civ. App. Beaumont 1953),
writ refused n.r.e.
[FN3] Rothery v. MacDonald, 329 Mass. 238, 107 N.E.2d 432 (1952).
[FN4] Rothery v. MacDonald, 329 Mass. 238, 107 N.E.2d 432 (1952).
[FN5] Lambert v. State, 211 Miss. 129,51 So. 2d 201 (1951).
[FN6] Smith v. Hayden, 772 P.2d 47 (Colo. 1989).
[FN7] Norton v. Addie, 324 So. 2d 497 (La. Ct. App. 2d Cir. 1975), writ issued, 326 So. 2d 378 (La.
1976) and affd in part, rev'd on other grounds in part, 337 So. 2d 432 (La. 1976).
[FN8] Sanford v. Dimes, 3 Conn. App. 639, 491 A.2d 398 (1985); Rosencrantz v. Shields, Inc., 28 Md.
App. 379, 346 A.2d 237, 76 A.L.R.3d 1188 (1975).
[FN9] Krosmico v. Pettit, 1998 OK 90, 968 P.2d 345 (Okla. 1998).
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AMJUR ADVERSE § 107
END OF DOCUMENT
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AMJUR ADVERSE § 108
3 Am. Jur. 2d Adverse Possession § 108
American Jurisprudence. Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
c. By Owner
(I) In General; Entry Effecting an Ouster of the Claimant
Topic Summary Correlation Table References
§ 108. Sufficiency of acts of entry-Grazing livestock or cutting timber
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=;>47
Page 227 of 665
Page I
It has been held that the grazing of livestock or the cutting of timber, by particular record owners of real
property, defeats the exclusiveness or continuity of possession by an adverse claimant.[l] However, it has also
been held that the grazing of livestock, the gathering of a natural crop, or the cutting of timber by the record
owners of real property does not defeat the exclusiveness or continuity of possession by an adverse claiman!.[2]
[FN I] Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882 (1946); Raftopoulos v.
Monger, 656 P.2d 1308,39 A.L.R.4th 1141 (Colo. 1983) (overruled on other grounds by, Gerner v. Sul-
livan, 768 P.2d 701 (Colo. 1989)) and (overruling recognized by, White Front Auto Sales, Inc. v. My-
gatt, 810 P.2d 234 (Colo. C!. App. 1990)); Rogers v. Haughton Timber Co., Inc., 503 So. 2d 1079 (La.
C!. App. 2d Cir. 1987); Coleman v. Waddell, 151 Tex. 337,249 S.W.2d 912 (1952).
[FN2] Winlock v. Gallaspy, 19 La. App. 861, 140 So. 846 (2d Cir. 1932); Dierks Lumber & Coal Co. v.
Vaughn, 131 F. Supp. 219 (E.D. Ark. 1954), judgment atrd, 221 F.2d 695 (8th Cir. 1955) (applying
Arkansas law); Nelson v. Johnson, 189 Ky. 815, 226 S.W. 94 (1920); Lone Star Steel Co. v. Owens,
302 S. W.2d 213 (Tex. Civ. App. Texarkana 1957), writ refused n.r.e; Zellmer v. Martin, 157 Wis. 341,
147 N.W. 371 (1914).
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AMJUR ADVERSE § 108
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3 Am. Jur. 2d Adverse Possession § 108
END OF DOCUMENT
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AMJUR ADVERSE § 109
3 Am. Jur. 2d Adverse Possession § 109
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
c. By Owner
(2) Legal Proceedings Regarding Title or Possession
Topic Summary Correlation Table References
§ 109. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession €;;;;>51
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 7, 42 et seq.
Page 229 of 665
Page I
A verdict and judgment in a proceeding by which the plaintiff recovers the contested land destroys all title
in the defendant at the date of the judgment.[l] While the defendant, by adverse possession beginning after the
judgment, may still acquire title, the period of possession prior to the judgment cannot be considered.[2] The ef-
fect of a suit or action to recover land relates back to the date of its commencement, and the claimant can ac-
quire no additional advantages by remaining in possession during its pendency.[3] Thus, a valid subsisting judg-
ment or decree, even before possession has been taken thereunder, will suspend the running of the statute,[4] if
the judgment has been made effectual by the execution of a writ of possession.[ 5]
To stop the running of the statute of limitations, the proceeding must be:
(I) to recover possession of the property;
(2) brought against the party claiming adversely;[6]
(3) must be prosecuted to final judgment.[7]
While the running of the statute in favor of one in adverse possession is arrested by the bringing of an action
disputing adverse title,[8] the statute is arrested only for the purpose of that action, and not for any other action
subsequently brought, though by the same person.[9]
In a suit to quiet title by one in possession of real property under an adverse claim, an answer by the defend-
ant disputing the plaintiffs title will suspend the plaintiffs possession from the date of the answer, provided the
answer is successfully prosecuted in the action,[ I 0] but an unsuccessful denial of title does not break the con-
tinuity of the plaintiffs possession.[II] Filing a counterclaim challenging the title of the plaintiff and making a
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AMJUR ADVERSE § 109
Page 2
3 Am. Jur. 2d Adverse Possession § 109
claim of ownership of the property in the defendant also interrupts the adverse character of the plaintiff's posses-
sion if the counterclaim is successfulIy prosecuted and judgment is awarded to the defendant.[12]
[FNI] Shepherd v. Lyle, 1964 OK 204, 395 P.2d 641 (Okla. 1964).
[FN2] Shepherd v. Lyle, 1964 OK 204, 395 P.2d 641 (Okla. 1964).
[FN3] Flathead Lumber Corp. v. Everett, 127 Mont. 291, 263 P.2d 376 (1953).
[FN4] Creech v. Jenkins, 276 Ky. 163, 123 S.W.2d 267 (1938); Sanford v. Herron, 161 Mo. 176, 61
S.W. 839 (1901).
[FN5] EbelI v. City ofBaker, 137 Or. 427, 299 P. 313 (1931).
[FN6] Snook v. Bowers, 12 P.3d 771 (Alaska 2000).
A person in possession, who was not a party to an ejectment suit in which a writ of restitution was is-
sued, was not affected by an execution of the writ that merely constructively placed the plaintiff in pos-
session, and the running of the statute of limitations in his favor was not tolIed. Martin v. HalI, 152 Ky.
677,153 S.W. 997 (1913).
[FN7] Gibbs v. Lester, 41 S. W.2d 28, 80 A.L.R. 431 (Tex. Comm'n App. 1931).
[FN8] Tungsten Holdings, Inc. v. Parker, 2001 MT 117, 305 Mont. 329, 27 P.3d 429 (2001).
[FN9] Weiner v. Steams, 40 Utah 185, 120 P. 490 (1911).
[FNIO] Chapin v. Letcher, 93 N.W.2d415 (N.D. 1958).
[FNII] Chapin v. Letcher, 93 N.W.2d415 (N.D. 1958).
[FNI2] Chapin v. Letcher, 93 N.W.2d415 (N.D. 1958).
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AMJUR ADVERSE § 110
3 Am. Jur. 2d Adverse Possession § 110
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
G. Continuity of Possession
3. Interruption of Continuity
c. By Owner
(2) Legal Proceedings Regarding Title or Possession
Topic Summary Correlation Table References
§ 110. Unsuccessful action; discontinuance, dismissal, or reversal of judgment
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£:=51
Page 231 of 665
Page I
An unsuccessful suit on the part of the record owner does not break the continuity of adverse possession.[ I]
An action of ejectment or an action to try the title to, or obtain the possession of, real estate that fails, or that
does not result in a judgment in favor of the plaintiff, does not have the effect of suspending or tolling the run-
ning of the statute of limitations in favor of the defendant.[2] Thus, one in possession of real estate who is not
dispossessed under an adverse decision in an ejectment suit need not seek restitution on reversal of the judgment
to take advantage of the adverse possession.[3]
In computing the period of adverse possession of land, the time of pendency of any dismissed, abandoned,
or otherwise discontinued action in respect to the property is to be treated as though the action had never been
instituted.[ 4]
[FNI] Crawford v. Sasser, 238 Ky. 543, 38 S.W.2d 434 (1931); Jones v. Schmidt, 170 Neb. 351, 102
N.W.2d 640 (1960): Gibbs v. Lester, 41 S.W.2d 28,80 A.L.R. 431 (Tex. Comm'n App. 1931).
[FN2] Garcia v. McLean, 355 So. 2d 504 (Fla. Dis!. C!. App. 1st Dis!. 1978); Martin v. Hall, 152 Ky.
677, 153 S.W. 997 (1913); Jones v. Schmidt, 170 Neb. 351,102 N.W.2d 640 (1960): Chapin v. Letcher,
93 N.W.2d415 (N.D. 1958).
[FN3] Martin v. Hall, 152 Ky. 677,153 S.W. 997 (1913).
[FN4] Thompson v. Ratcliff, 245 S.W.2d 592 (Ky. 1952) (abandonment); Butler v. Smith, 84 Neb. 78,
120 N.W. 1106 (1909); Gibbs v. Lester, 41 S.W.2d 28,80 A.L.R. 431 (Tex. Comm'n App. 1931).
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AMJUR ADVERSE § 110 Page 2
3 Am. Jur. 2d Adverse Possession § 110
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AMJUR ADVERSE § 110
END OF DOCUMENT
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AMJUR ADVERSE n H REF
3 Am. Jur. 2d Adverse Possession n H Refs.
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Topic Summary Correlation Table
Research References
West's Key Number Digest
n. Elements and Requisites
H. Claim to Property
West's Key Number Digest, Adverse Possession C=13, 84, 91, 97, 98, 99.1, 100, III
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 21 to 26.5
A.L.R. Index: Adverse Possession
Forms
IB Am. Jur. Pleading and Practice Forms, Adverse Possession §§ 28,121,123,136,138
Page 233 of 665
Page I
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AMJUR ADVERSE n H REF
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AMJUR ADVERSE § III
3 Am. Jur. 2d Adverse Possession § III
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
11. Elements and Requisites
H. Claim to Property
1. In General; Good Faith
Topic Summary Correlation Table References
§ 111. Generally; definitions and distinctions
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=13, 84
A.L.R. Library
Page 234 of 665
Page I
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R. 2d 986 § 1.
While the terms "claim of right" and "color of title" are frequently used as synonymous,[I] in fact their
functions are vastly different.[2] Terms such as "claim of right," "claim of title," and "claim of ownership,"
when used in connection with adverse possession, mean nothing more than the intention of the claimant to ap-
propriate and use the land to the exclusion of all others.[3]
"Color of title," on the other hand, is that which gives the semblance or appearance of title, but which is not
title in fact.[ 4]
Both claim and color of title may be present at the same time.[5] In some jurisdictions, a party may establish
a claim of adverse possession by showing either color of title or a claim ofright.[6]
[FN I] Sullivan v. Neel, 105 Mont. 253, 73 P.2d 206 (1937).
[FN2] Smith v. Orr, 242 Ala. 566, 7 So. 2d 294 (1942); Philbin v. Carr, 75 Ind. App. 560, 129 N.E. 19
(1920); Barrett v. Brewer, 153 N.C. 547, 69 S.E. 614 (1910).
[FN3] § 116.
[FN4] § 130.
[FN5] Roe v. Doe ex demo Tennessee Coal, Iron & Ry. Co., 162 Ala. lSI, 50 So. 230 (1909); Bull V.
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Page 235 of 665
AMJUR ADVERSE § III Page 2
3 Am. Jur. 2d Adverse Possession § III
Beiseker, 16 N.D. 290, 113 N.W. 870 (1907).
[FN6] C.H. Moore Trust Estate by Warner v. City of Storm Lake, 423 N. W.2d 13 (lowa 1988); Tester
v. Tester, 300 Mont. 5, 3 P.3d 109 (2000); Miller v. Lambert, 196 W. Va. 24, 467 S.E.2d 165 (1995);
Kimball v. Turner, 993 P.2d 303 (Wyo. 1999).
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AMJUR ADVERSE § III
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AMJUR ADVERSE § 112
3 Am. Jur. 2d Adverse Possession § 112
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
ll. Elements and Requisites
H. Claim to Property
I. In General; Good Faith
Topic Summary Correlation Table References
§ 112. Necessity of good faith
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£;=13, 84
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 § 7.
Page 236 of 665
Page I
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R. 2d 986 § 3.
In some jurisdictions, with respect to the validity of a claim of title, good faith must characterize the entry
and possession of the adverse possessor.[l] In other jurisdictions, a claim for adverse possession does not re-
quire a good faith belief in the possessor's claim to the land,[2] and one who uses the land of another in defiance
of the owner is an adverse user, even if he or she admits the lack of a legal justification for the use.[3] Under
some statutes, the requirement of good faith applies only to constructive possession under color of title,[4] so
that one holding possession under color of title that he or she knows was fraudulently procured cannot acquire
prescriptive title.[5]
[FN I] Armstrong v. Cities Service Gas Co., 210 Kan. 298, 502 P.2d 672 (1972); Waterman v. Tidewa-
ter Associated Oil Co., 213 La. 588, 35 So. 2d 225 (1947); State v. Lee, 128 Wash. 2d 151,904 P.2d
1143 (1995).
[FN2] Estate of Stone v. Hanson, 621 A.2d 852 (Me. 1993); Lewis v. Moorhead, 522 N.W.2d I (S.D. 1994).
[FN3] Crandall v. Gould, 244 Conn. 583, 711 A.2d 682 (1998).
[FN4] Snook v. Bowers, 12 P.3d 771 (Alaska 2000); Armour v. Peek, 271 Ga. 202, 517 S.E.2d 527
(1999); Schlueter v. Ackerman, 215 Md. 173, 137 A.2d 179 (1957); Williams v. Howell, 108 N.M. 225,
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AMJUR ADVERSE § 112 Page 2
3 Am. Jur. 2d Adverse Possession § 112
770 P.2d 870 (1989).
[FN5] Armour v. Peek, 271 Ga. 202, 517 S.E.2d 527 (1999).
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AMJUR ADVERSE § 113
3 Am. Jur. 2d Adverse Possession § 113
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
n. Elements and Requisites
H. Claim to Property
1. In General; Good Faith
Topic Summary Correlation Table References
§ 113. What constitutes good or bad faith
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=13, 84
A.L.R. Library
Page 238 of 665
Page I
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R. 2d 986 §§ 17 et seq.
To establish good faith for the purposes of an adverse possession claim, it is generally sufficient for the
claimant to assert title in the claimant by acts of dominion, and to rely on that title as against the world.[I]
Good or bad faith is not a result of color of claim; the faith, whether good or bad, depends on the purpose
with which the color is obtained, and the reliance placed on the claim and the color.[2] Generally, in the absence
of some statutory provision to the contrary, it is not a necessary element of color of title that the claimant believe
it to be valid; the claimant's possession will not ordinarily be any the less adverse because of knowledge of title
in another.[3] Thus, "good faith" in acquiring title by adverse possession does not require ignorance of adverse
claims or defects in title.[4]
Practice Guide:
Good faith is presumed ifthere is no evidence that the claim of possession originated in fraud.[5]
However, under some statutes, occupancy of land under color of title, to be deemed adverse, must be with
the belief that the occupant's title is valid.[6] Thus, a claimant who takes color of title with knowledge of its in-
validity is guilty of bad faith and cannot base adverse possession on that color oftitle.[7]
It has been held that the claim to the property need not have been a rightful[8] or well-founded one.[9] It is
sufficient if there is a bona fide purpose to assert and rely on the possession and claim of right as hostile or ad-
verse to that of the real owner.[IO] However, it has also been held that an adverse claimant must in good faith
believe the claimant has some claim of right or title to the premises,[ll] and that the good faith required of a
claimant under the limitations act requires that the claimant have a bona fide belief of ownership of the land
claimed.[12] It has also been held that a claim of right must be honestly entertained before adverse possession
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Page 239 of665
AMJUR ADVERSE § 113 Page 2
3 Am. Jur. 2d Adverse Possession § 113
can arise under it,[ 13] and that there must be a basis for the claim.[14]
Caution:
An adverse possession commenced in good faith under a written instrument is not affected by subsequent bad
faith of the claimant.[15] The relevant time period for determining a claimant's good faith, for a claim of adverse
possession under color of title, is when the claimant obtained color of title to or took possession of the property,
not throughout the period ofpossession.[16]
[FNI] Roe v. Doe ex demo Tennessee Coal, Iron & Ry. Co., 162 Ala. 151,50 So. 230 (1909); Sparks v.
Douglas & Sparks Realty Co., 19 Ariz. 123, 166 P. 285 (1917).
[FN2] Bergesen V. Clauss, 15 III. 2d 337, ISS N.E.2d 20, 68 A.L.R.2d 446 (1958).
[FN3] Shutt V. Methodist Episcopal Church, 187 Ky. 350, 218 S.W. 1020 (1920); Marion Inv. CO. V.
Virginia Lincoln Furniture Corp., 171 Va. 170, 198 S.E. 508,118 A.L.R. 939 (1938).
[FN4] Foster v. Foster, 267 Ala. 90, 100 So. 2d 19 (1958); Thurmond V. Espalin, 50 N.M. 109, 171
P.2d 325 (1946); Bruch V. Benedict, 62 Wyo. 213,165 P.2d 561 (1946).
[FN5] Childs V. Sammons, 272 Ga. 737, 534 S.E.2d 409 (2000).
[FN6] Baker V. Schofield, 243 U.S. 114, 37 S. Ct. 333, 61 L. Ed. 626 (1917); Bel V. Manuel, 234 La.
135,99 So. 2d 58 (1958); Schlueter V. Ackerman, 215 Md. 173,137 A.2d 179 (1957); State v. King, 77
W. Va. 37, 87 S.E. 170(1915).
[FN7] Dussart V. M. Abdo Mercantile Co., 57 Colo. 423, 140 P. 806 (1914); Bergesen V. Clauss, IS 111.
2d 337, ISS N.E.2d 20,68 A.L.R.2d 446 (1958); Apodaca V. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956).
[FN8] Walker V. Bowen, 333 Mich. 13,52 N.W.2d 574 (1952); Foote V. Kearney, 157 Wash. 681, 290
P. 226 (1930).
[FN9] Walker v. Bowen, 333 Mich. 13, 52 N.W.2d 574 (1952); Marion Inv. Co. v. Virginia Lincoln
Furniture Corp., 171 Va. 170, 198 S.E. 508, 118 A.L.R. 939 (1938).
[FN 10] Foster V. Foster, 267 Ala. 90, 100 So. 2d 19 (1958).
[FNII] Creel V. Hammans, 234 Iowa 532,13 N.W.2d 305 (1944).
As to adverse possession by trespasser, see § 114.
[FN 12] Bergesen V. Clauss, IS III. 2d 337, 155 N.E.2d 20, 68 A.L.R.2d 446 (1958).
[FNI3] Hannah V. Kenny, 210 Ga. 824, 83 S.E.2d I (1954).
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AMJUR ADVERSE § 113
3 Am. Jur. 2d Adverse Possession § 113
[FNI4] Abel v. Abel, 245 Iowa 907, 65 N.W.2d 68 (1954).
[FNI5] Bel v. Manuel, 234 La. 135,99 So. 2d 58 (1958).
[FN 16] Snook v. Bowers, 12 P.3d 771 (Alaska 2000).
Page 240 of 665
Page 3
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Westlaw
AMJUR ADVERSE § 114
3 Am. Jur. 2d Adverse Possession § 114
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
I. In General; Good Faith
Topic Summary Correlation Table References
§ 114. What constitutes good or bad faith-Possession of a trespasser
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=13, 84
Page 241 of 665
Page I
In some jurisdictions, the conduct of an intentional trespasser, if repeated, might ripen into adverse posses-
sion.[ 1] However, in other jurisdictions, a trespasser's possession cannot ripen into title through adverse posses-
sion.[2]
[FNI] Dawson v. Falls City Boat Club, 136 Mich. 259, 99 N.W. 17 (1904); Kellison v. Mclsaac, 131
N.H. 675. 559 A.2d 834 (1989); Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 563 N.W.2d 154 (1997).
[FN2] Jacobs v. Perry. 135 Colo. 550, 313 P.2d 1008 (1957); Mann v. Carter, 213 Ga. 85, 97 S.E.2d
137 (1957); Philbin v. Carr, 75 Ind. App. 560, 129 N.E. 19 (1920); Armstrong v. Cities Service Gas
Co., 210 Kan. 298, 502 P.2d 672 (1972).
As to an act of trespass not constituting an act of dominion, see §§ 28, 29.
As to an act of trespass not constituting open and notorious possession, see §§ 62 et seq.
As to an act of trespass not disturbing exclusiveness of possession, see § 63.
As to the unavailability of the period of possession of a trespasser in tacking periods of possession, see
§§ 78 et seq.
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3 Am. Jur. 2d Adverse Possession § 114
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Westlaw
AMJUR ADVERSE § 115
3 Am. JUL 2d Adverse Possession § 115
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
I. In General; Good Faith
Topic Summary Correlation Table References
§ 115. What constitutes good or bad faith-Fraud, stealthiness, or conspiracy
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=> 13, 84
Page 243 of 665
Page I
If good faith is required, whether by general or statutory law, in the creation or acquisition of color of title,
the transaction must be free from a design to defraud those who appear to have a better title than the c1airnant's.[
I] The possession, whether it is under "claim" or "color" of title, must have nothing of stealthiness in it.[2] It
must not have originated in fraud on the part of the claimant;[3] actual fraud is neither sanctioned nor cured by
the statute of limitations.[4] Thus, actual fraud by a person will prevent a person from acquiring title by adverse
possession.[5]
Similarly, if a person obtains possession of personal property secretly by a common-law larceny and con-
ceals that possession, lapse of time cannot confer title on the thief.[6]
Under some statutes, the type of fraud that will prevent acquisition of title by adverse possession must be
actual or positive fraud, not constructive or legal fraud.[7]
[FNI] State v. King, 77 W. Va. 37, 87 S.E. 170 (1915).
[FN2] Iowa R. Land Co. v. Blumer, 206 U.S. 482, 27 S. Ct. 769, 51 L. Ed. 1148 (1907); Lightfoot v.
Davis, 198 N.Y. 261, 91 N.E. 582 (1910).
[FN3] Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956).
[FN4] Baker v. Schofield, 243 U.S. 114, 37 S. Ct. 333, 61 L. Ed. 626 (1917); Farabow v. Perry, 223
N.C. 21, 25 S.E.2d 173 (1943).
[FN5] Wanamaker v. Wanamaker, 215 Ga. 473, III S.E.2d 94 (1959).
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3 Am. JUL 2d Adverse Possession § 115
[FN6] Lightfoot v. Davis, 198 N.Y. 261, 91 N.E. 582 (19\0); Luter v. Hutchinson, 30 Tex. Civ. App.
511,70 S.W. 1013 (1902).
[FN7] Wanamaker v. Wanamaker, 215 Ga. 473,111 S.E.2d 94 (1959).
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AMJUR ADVERSE § 116
3 Am. Jur. 2d Adverse Possession § 116
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
2. Claim of Right, Title, or Ownership
Topic Summary Correlation Table References
§ I 16. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=13, 97, 98, I I I
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 § 7.
Forms
Page 245 of 665
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Instruction to jury-Effect of adverse possession under claim of right or title. I BAm. Jur. Pleading and
Practice Fonns, Adverse Possession § 121.
For the possession ofland to be adverse, it must be based on a claim ofright,[I] title,[2] or ownership.[3]
Observation:
The doctrine of adverse possession was formulated at law to protect those who knowingly appropriated the land
of others and those who honestly held the property in the beliefthat it was their own[4]
The claim of the occupant is not limited by the occupant's belief in a right to possession, but only by the in-
tent with which the occupant asserts the right.[5]
A mere claim of title wi11 not ripen into title, no matter how long it is asserted,[6] because it is only one of
several requirements for the acquisition of title by adverse possession.[7]
CUMULATIVE SUPPLEMENT
Cases:
The term "claim of right" as an element of a claim of ownership under the adverse possession statute is syn-
onymous with "claim of title" and "claim of ownership"; while this does not mean that the possession must be
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3 Am. Jur. 2d Adverse Possession § 116
accompanied by a claim of title out of some predecessor, it does mean that there must be some claim of title in
the sense that the possessor claims the property as his own. Walker v. Sapelo Island Heritage Authority, 285 Ga.
194,674 S.E.2d 925 (2009).
lEND OF SUPPLEMENTI
[FNI] Chevy Chase Land Co. of Montgomery County, Md. v. U.S., 37 Fed. CI. 545 (1997), judgment
affd, 230 F.3d 1375 (Fed. Cir. 1999), amended, (Mar. 27, 2000) and reh'g and reh'g en bane denied,
(Apr. 6, 2000) and cert. denied, 531 U.S. 957, 121 S. Ct. 380, 148 L. Ed. 2d 293 (2000) (applying
Maryland law); Dillard v. Alexander, 277 Ala. 202, 168 So. 2d 233 (1964); Lewes Trust Co. v. Grindle,
53 Del. 396, 170 A.2d 280 (1961); Kurz v. Blume, 407 111. 383, 95 N.E.2d 338, 25 A.L.R.2d 1258
(1950); Philbin v. Carr, 75 Ind. App. 560, 129 N.E. 19 (1920); Meyers v. Canutt, 242 Iowa 692, 46
N.W.2d 72, 24 A.L.R.2d I (1951); Ottavia v. Savarese, 338 Mass. 330, 155 N.E.2d 432, 2 A.L.R.3d 997
(1959); Horbes v. Ahearn, 369 Mich. 423, 120 N.W.2d 215 (1963); Morgan v. Jenson, 47 N.D. 137,
181 N.W. 89 (1921); Gibbs v. Lester, 41 S.W.2d 28,80 A.L.R. 431 (Tex. Comm'n App. 1931); Sowles
v. Minot, 82 VI. 344, 73 A. 1025 (1909); Millerv. Lambert, 196 W. Va. 24, 467 S.E.2d 165 (1995).
[FN2] Raby v. Hill, II Alaska 600, 1948 WL 777 (Terr. Alaska 1948); Carnahan v. Cummings, 105
Neb. 337, 180 N.W. 558, 12 A.L.R. 1455 (1920); Van Valkenburgh v. Lutz, 304 N.Y. 95, 106 N.E.2d
28 (1952).
[FN3] Walter v. Jones, 15111. 2d 220, 154 N.E.2d 250 (1958); Ford v. Rhymes, 233 Miss. 651, 103 So.
2d 363 (1958); Reinheimer v. Rhedans, 327 S.W.2d 823 (Mo. 1959); Elsasser v. Szymanski, 163 Neb.
65,77 N. W.2d 815 (1956).
[FN4] ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 774 P.2d 6 (1989).
[FN5] Holmes v. Johnson, 324 Mass. 450, 86 N.E.2d 924 (1949); Sturm v. Mau, 209 Neb. 865, 312
N.W.2d 272 (1981).
[FN6] Ennis v. Stanley, 346 Mich. 296, 78 N.W.2d 114 (1956); Bilby v. Wire, 77 N.W.2d 882 (N.D. 1956).
[FN7] §§ 10 et seq.
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Westlaw
AMJUR ADVERSE § 117
3 Am. Jur. 2d Adverse Possession § 117
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surelle, J.D.
II. Elements and Requisites
H. Claim to Property
2. Claim of Right, Title, or Ownership
Topic Summary Correlation Table References
§ 117. Necessity of a writing
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=I3, 97, 98
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 § 44.
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 §§ 4 et seq.
Page 247 of 665
Page I
A claim of right or title (as distinguished from color of title) as a basis for the acquisition of title by adverse
possession need not be based on writing,[I] and will be effective if the original entry was under an oral contract
of sale,[2] or under a parol gift,[3] or under any other parol agreement.[4] The efficacy of the acquired title does
not depend on the fact that the entry was had under the oral gift or agreement, but rather on the fact that it was
maintained under a claim ofright.[5]
[FNI] Holub v. Titus, 120 Ark. 620, 180 S.W. 218 (1915); Brooks-Scanlon Co. v. Childs, 113 Miss.
246, 74 So. 147, 2 A.L.R. 1453 (1917); Marion Inv. Co. v. Virginia Lincoln Furniture Corp., 171 Va.
170,198 S.E. 508, 118 A.L.R. 939 (1938).
As to the necessity ofa writing to establish color of title, see § 125.
[FN2] Holland v. Ousbye, 132 Minn. 106, 155 N.W. 1071 (1916); Brooks-Scanlon Co. v. Childs, 113
Miss. 246, 74 So. 147,2 A.L.R. 1453 (1917).
[FN3] Pendley v. Pendley, 338 So. 2d 405 (Ala. 1976); Ramey v. Ramey, 353 S.W.2d 191 (Ky. 1962);
Chatman v. Carter, 226 Miss. 621, 84 So. 2d 926 (1956); Harrelson v. Reaves, 219 S.C. 394, 65 S.E.2d
478,43 A.L.R.2d I (1951); Raleigh v. Wells, 29 Utah 217, 81 P. 908 (1905).
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AMJUR ADVERSE § 117 Page 2
3 Am. Jur. 2d Adverse Possession § 117
[FN4] Schmidt v. Brown, 226 111. 590, 80 N.E. 1071 (1907); Butcher v. Butcher, 137 Mich. 390, 100
N.W. 604 (1904); Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147,2 A.L.R. 1453 (1917).
[FN5] Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147,2 A.L.R. 1453 (1917).
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Westlaw
AMJUR ADVERSE § 118
3 Am. Jur. 2d Adverse Possession § 118
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
2. Claim of Right, Title, or Ownership
Topic Summary Correlation Table References
§ 118. What constitutes a claim of right
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 9 7 , 98
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 7 et seq.
Page 249 of 665
Page I
Tenns such as "claim of right," "claim of title," and "claim of ownership," when used in connection with ad-
verse possession, have been defined as the intention of the claimant to appropriate and use the land to the exclu-
sion of all others,[I] irrespective of any semblance or shadow of actual title or right.[2] "Claim of right" also has
been defined as the entry of an adverse claimant with an intent to claim and hold the land as the claimant's own,[
3] to the exclusion of all others.[4] Thus, the tenn "claim of right" means no more than the tenn "hostile;" and if
possession is hostile, it is under a claim ofright.[5]
[FNl] Guaranty Title & Trust Corp. v. U. S., 264 U.S. 200, 44 S. Ct. 252, 68 L. Ed. 636 (1924); Roe v.
Doe ex demo Tennessee Coal, Iron & Ry. Co., 162 Ala. 151,50 So. 230 (1909); Gunther & Shirley Co.
v. Presbytery of Los Angeles, 85 Ariz. 56, 331 P.2d 257 (1958); Fredericksen V. Henke, 167 Minn. 356,
209 N.W. 257,46 A.L.R. 785 (1926); Ball V. Martin, 217 Miss. 221, 63 So. 2d 833 (1953); Bessler V.
Powder River Gold Dredging Co., 95 Or. 271, 187 P. 621 (1920); Grappo V. Blanks, 241 Va. 58,400
S.E.2d 168 (1991); Sisson V. Koelle, 10 Wash. App. 746, 520 P.2d 1380 (Div. 2 1974).
As to claim of right, title, and ownership, generally, see §§ 112 et seq.
As to exclusiveness of possession, see §§ 67 et seq.
[FN2] Gunther & Shirley CO. V. Presbytery of Los Angeles, 85 Ariz. 56, 331 P.2d 257 (1958); Ball V.
Martin, 217 Miss. 221, 63 So. 2d 833 (1953); Weiss v. Meyer, 208 Neb. 429, 303 N.W.2d 765 (1981);
Hoffman v. Freeman Land and Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999); Young Kee Kim V.
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Douval Corp., 259 Va. 752, 529 S.E.2d 92 (2000).
[FN3] Eaton v. Town of Wells, 2000 ME 176, 760 A.2d 232 (Me. 2000); Hoffman v. Freeman Land
and Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999); Peters v. Gillund, 186 S.W.2d 1019 (Tex. Civ.
App. Galveston 1945), writ refused w.o.m., (June 13, 1945); Young Kee Kim v. Douval Corp., 259 Va.
752,529 S.E.2d 92 (2000); Selman v. Roberts, 185 W. Va. 80, 404 S.E.2d 771 (1991).
[FN4] Hoffman v. Freeman Land and Timber, LLC., 329 Or. 554,994 P.2d 106 (1999); Young Kee
Kim v. Douval Corp., 259 Va. 752, 529 S.E.2d 92 (2000).
[FN5] Wanha v. Long, 255 Neb. 849, 587 N.W.2d 531 (1998); Hinman v. Barnes, 146 Ohio St. 497, 32
Ohio Op. 564,66 N.E.2d 911 (1946).
As to the hostile character of possession, see §§ 41 et seq.
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AMJUR ADVERSE § 119 Page I
3 Am. Jur. 2d Adverse Possession § 119
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
2. Claim of Right, Title, or Ownership
Topic Summary Correlation Table References
§ 119. What constitutes a claim of right-As determined from words or actions
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=97, 98
Forms
Instruction to jury-Notice of claim of right inferred by possession. IB Am. Jur. Pleading and Practice
Forms, Adverse Possession § 123.
The existence of a claim of right in an adverse possession case may be manifested either by words or by
acts, and it is general1y inferred from the latter.[I] Thus, it is not necessary to establish a claim of right or claim
of ownership that possession be accompanied by an express declaration or claim of title; it is sufficient if the
proof shows that the party in possession has acted so as to clearly indicate a claim of title.[2] If the claimant's
acts and conduct clearly indicate a claim of ownership, that is sufficient.[3] Thus, the actual occupation, use, and
improvement of the premises by the claimant, as if the claimant were in fact the owner, without payment of rent
or recognition of title in another or, the claimant's disavowal of title, is sufficient to raise a presumption of entry
and holding as absolute owner, and, unless rebutted, will establish the fact of a claim ofright.[4]
[FNI] Hollis v. Tomlinson, 585 So. 2d 862 (Ala. 1991); Calhoun v. Woods, 246 Va. 41, 431 S.E.2d 285
(1993); City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. I (1929).
[FN2] Walter v. Jones, 15 III. 2d 220, 154 N.E.2d 250 (1958); Kendal1 v. Selvaggio, 413 Mass. 619,
602 N.E.2d 206 (1992); Nebraska State Bank v. Gaddis, 208 Neb. 136,302 N.W.2d 686 (1981); Carne-
vale v. Dupee, 783 A.2d 404 (R.1. 2001).
An adverse claim of title to land was established by evidence that the claimant filed of record a deed of
the property to the claimant, that each year after that he paid taxes on the property, that he fenced the
property and used it for the grazing of livestock, and that he placed lasting improvements on the prop-
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3 Am. Jur. 2d AdYerse Possession § 119
erty. Brewster Y. Herron, 1952 OK 440, 267 P.2d 143,38 A.L.R.2d 335 (Okla. 1952).
[FN3] Hunsley Y. Valter, 12 Ill. 2d 608, 147 N.E.2d 356 (1958); Smith Y. Feneley, 240 Mich. 439, 215
N.W. 353 (1927); Marion Iny. CO. Y. Virginia Lincoln Furniture Corp., 171 Va. 170, 198 S.E. 508, 118
A.L.R. 939 (1938); Foote Y. Kearney, 157 Wash. 681, 290 P. 226 (1930).
[FN4] Carney Y. Hennessey, 74 Conn. 107, 49 A. 910 (1901); Shoer Y. Daffe, 337 Mass. 420, 149
N.E.2d 625 (1958); Marion Iny. CO. Y. Virginia Lincoln Furniture Corp., 171 Va. 170, 198 S.E. 508,
118 A.L.R. 939 (1938); Buchanan Y. Cassell, 53 Wash. 2d 611, 335 P.2d 600 (1959); Illinois Steel CO.
Y. Budzisz, 106 Wis. 499,81 N.W. 1027 (1900); State Y. Moore, 356 P.2d 141 (Wyo. 1960).
Because a man built a house on the land, planted it to lawn and surrounded it and the rest of the prop-
erty with a hedge, his use was that ordinarily made only by an owner, and it was reasonably inferable
that his possession was taken under a claim of ownership. Shoer Y. Daffe, 337 Mass. 420, 149 N.E.2d
625 (1958).
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AMJUR ADVERSE § 120
3 Am. Jur. 2d Adverse Possession § 120
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
2. Claim of Right, Title, or Ownership
Topic Summary Correlation Table References
§ 120. What constitutes a claim of right-Particular conduct
West's Key Number Digest
West's Key Number Digest, Adverse Possession <C=:>97, 98
A.L.R. Library
Page 253 of 665
Page 1
Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48
A.L.R. 3d 818 § 12.
A particular act or series of acts is not necessary to demonstrate an intention to claim ownership.[l]
However, a claim of ownership may be evidenced by:
- possessing a void deed.[2]
- receiving the rents,[3] issues, and profits of the property.[4]
- occupying the property.[5]
- conveying,[6] devising, leasing,[7] or encumbering the property.[8]
- improving the property.[9]
A mere passive possession, without intending to claim the property, is insufficient, regardless of the length
of time it continues, or however open, notorious, or exclusive it may have been.[10] Neither continuous and un-
interrupted possession nor payment of taxes alone will establish a claim ofright.[ II]
[FNI] Marvel v. Barley Mill Road Homes, 34 Del. Ch. 417, \04 A.2d 908 (1954); Robin v. Brown, 308
Pa. 123, 162 A. 161 (1932); Mandelbaum v. Looney Mercantile Co., 293 S.W. 203 (Tex. Civ. App.
Austin 1927).
[FN2] Hoftinan v. Freeman Land and Timber, LLC., 329 Or. 554, 994 P.2d 106 (1999); Bruch v. Bene-
dict, 62 Wyo. 213,165 P.2d 561 (1946).
[FN3] Allen v. Wiseman, 359 Mo. 1026,224 S.W.2d 1010 (1949).
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AMJUR ADVERSE § 120 Page 2
3 Am. Jur. 2d Adverse Possession § 120
[FN4] Preston v. Preston, 1949 OK 59, 201 Okla. 555,207 P.2d 313 (1949).
[FN5] East Lizard Butte Water Corp. v. Howell, 122 Idaho 679, 837 P.2d 805 (1992).
[FN6] Stiff v. Cobb, 126 Ala. 381, 28 So. 402 (1900); Preston v. Preston, 1949 OK 59, 201 Okla. 555,
207 P.2d 313 (1949).
[FN7] Preston v. Preston, 1949 OK 59, 201 Okla. 555, 207 P.2d 313 (1949).
[FN8] Stiff v. Cobb, 126 Ala. 381, 28 So. 402 (1900); Warner v. Wickizer, 1930 OK 419, 146 Okla.
232,294 P. 130 (1930).
[FN9] Childs v. Sammons, 272 Ga. 737, 534 S.E.2d 409 (2000); Warner v. Wickizer, 1930 OK 419,
146 Okla. 232, 294 P. 130 (1930); Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826 (R.\.
2001); Pioneer Investment & Trust Co. v. Board of Education of Salt Lake City, 35 Utah 1, 99 P. 150
(1909); Illinois Steel Co. v. Budzisz, 106 Wis. 499, 81 N.W. 1027 (1900).
[FNIO] Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932); Pioneer Investment & Trust Co. v. Board of
Education of Salt Lake City, 35 Utah 1,99 P. 150 (1909).
[FNII] Lynch v. Lynch, 239 Iowa 1245,34 N.W.2d 485 (1948).
As to payment of taxes, generally, see §§ 146 et seq.
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AMJUR ADVERSE § 121
3 Am. Jur. 2d Adverse Possession § 121
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
2. Claim of Right, Title, or Ownership
Topic Summary Correlation Table References
§ 121. Nature and extent of claim
West's Key Number Digest
West's Key Number Digest, Adverse Possession €::=97, 98, III
Page 255 of 665
Page 1
The nature and extent of the estate acquired by adverse possession is fixed by the claim of the possessor,
coupled with the fact of possession under the circumstances contemplated by law.[1] To establish title by ad-
verse possession, the claim of right must be as broad as the possession.[2] If an adverse claimant claims less
than the whole of a certain property, the claimant's rights will be limited accordingly, because adverse title can-
not be acquired to more than is claimed.[3] However, a disclaimer of title as to a part of the land will not affect
the claimant's adverse possession of the rest.[4]
If a person claims only a limited estate, and not a fee, the law will not, contrary to the claimant's intention,
enlarge it to a fee.[5] For example, only a life estate is acquired if an adverse possessor claims only a life estate.[ 6]
A claim as a tenant cannot ripen into title in the tenant by adverse possession.[7]
[FNI] Joy v. Outlaw, 28 Tenn. App. 565,192 S.W.2d 81 (1945).
[FN2] Brewer v. Claypool, 223 Iowa 1235,275 N.W. 34 (1937).
[FN3] Parrillo v. Riccitelli, 84 R.1. 276,123 A.2d 248 (1956) (portion of an unaccepted street).
[FN4] St. William's Church, Raquette Lake, v. People, 269 A.D. 874, 56 N.Y.S.2d 868 (3d Dep't 1945),
judgment rev'd on other grounds, 296 N.Y. 861, 72 N.E.2d 604 (1947).
[FN5] Holmes v. Johnson, 324 Mass. 450, 86 N.E.2d 924 (1949).
[FN6] West v. Moore, 193 Tenn. 431, 246 S.W.2d 74 (1952).
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AMJUR ADVERSE § 121
Page 2
3 Am. Jur. 2d Adverse Possession § 121
[FN7] Holmes v. Johnson, 324 Mass. 450, 86 N.E.2d 924 (1949).
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AMJUR ADVERSE § 122
3 Am. Jur. 2d Adverse Possession § 122
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
2. Claim of Right, Title, or Ownership
Topic Summary Correlation Table References
§ 122. Motive of claimant; acts after entry
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=84, 97, 98
Page 257 of 665
Page I
An adverse occupant's claim of right does not depend on the remote motives or purposes of the occupant.[ I]
Thus, inquiry is not to be made into the recesses of the possessor's mind, the possessor's motives or purposes, or
the possessor's guilt or innocence.[2]
However, if, after the original entry, the claimant recognizes the real owner's title by claiming and establish-
ing an easement by prescription across the property in question, that may show that occupation was not under a
claim oftitle.[3]
[FNI] Krause v. Nolte, 217 III. 298, 75 N.E. 362 (1905); Nebraska State Bank v. Gaddis, 208 Neb. 136,
302 N.W.2d 686 (1981).
[FN2] Pettis v. Lozier, 205 Neb. 802, 290 N.W.2d 215 (1980); Fulton v. Rapp, 45 Ohio Op. 494, 59
Ohio L. Abs. 105,98 N.E.2d 430 (Ct. App. 2d Dist. Madison County 1950).
[FN3] Van Valkenburgh v. Lutz, 304 N.Y. 95,106 N.E.2d 28 (1952).
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AMJUR ADVERSE § 123
3 Am. Jur. 2d Adverse Possession § 123
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
a. In General
Topic Summary Correlation Table References
§ 123. Generally; necessity
West's Key Number Digest
West's Key Number Digest, Adverse Possession €;:;:;:>99.1
A.L.R. Library
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6 § 3[(b)].
Forms
Page 258 of 665
Page I
Instruction to jury-Elements of adverse possession-Necessity for color of title. IB Am. Jur. Pleading and
Practice Forms, Adverse Possession § 28.
In the absence of a statutory requirement, color of title is not a necessary element of adverse possession.[J]
Thus, it is not generally necessary that an adverse claimant have color of title to land actually possessed to in-
voke the statute of limitations.[2]
Definitions:
"Color of title" is that which gives the semblance or appearance of title, but which is not title in fact-that
which, on its face, professes to pass title, but fails to do so because of a want of title in the person fTom whom it
comes or the employment of an ineffective means of conveyance.[3]
In certain jurisdictions, however, statutes require an entry under color of title, or the subsequent acquisition
of color of title, before the possession of land can be deemed to be adverse to the holder of the legal title.[4]
Also, some statutes make color of title an alternative requisite for establishing title by adverse possession.[5] In
some states, color of title is essential to the acquisition of title by adverse possession, usually requiring a shorter
period of adverse holding in such cases than in cases without color oftitle.[6]
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Page 259 of 665
AMJUR ADVERSE § 123 Page 2
3 Am. Jur. 2d Adverse Possession § 123
[FNI] Ruick v. Twarkins, 171 Conn. 149,367 A.2d 1380 (1976); Seaboard Air Line Ry. Co. v. Board
of Bond Trustees of Special Road and Bridge Dis!. No. I of Alachua County, 91 Fla. 612, 108 So. 689,
46 A.L.R. 870 (1926); Cooper v. Tarpley, 112 Ind. App. 1,41 N.E.2d 640 (1942); Boese v. Crane, 182
Kan. 777, 324 P.2d 188 (1958); Naporra v. Weckwerth, 178 Minn. 203, 226 N.W. 569, 65 A.L.R. 124
(1929); Gates v. Roberts, 350 S.W.2d 729 (Mo. 1961); Thibault v. Flynn, 133 Mont. 461, 325 P.2d 914
(1958); Power v. Kitching, 10 N.D. 254, 86 N.W. 737 (1901); Graniteville Co. v. Williams, 209 S.C.
112,39 S.E.2d 202 (1946); City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. I (1929).
[FN2] Garringer v. Wingard, 585 So. 2d 898 (Ala. 1991); Hamburg Realty Co. v. Walker, 327 S.W.2d
155 (Mo. 1959); Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E. 239 (1920); City of Deadwood v. Sum-
mit, Inc., 2000 SD 29, 607 N. W.2d 22 (S.D. 2000).
The acquisition of title to an alleyway by adverse possession was not precluded by the absence of a
showing of a paper claim by the adverse possessor or by any indication that his possession may have
been based on ignorance or mistake as to the true location of the boundary line. Hub Bel Air, Inc. v.
Hirsch, 203 Md. 637,102 A.2d 550, 39 A.L.R.2d 1420 (1954).
[FN3] § 130.
[FN4] Hannah v. Kenny, 210 Ga. 824, 83 S.E.2d I (1954); Carpenter v. Ruperto, 315 N.W.2d 782
(Iowa 1982); Bel v. Manuel, 234 La. 135, 99 So. 2d 58 (1958); Estate of Stone v. Hanson, 621 A.2d 852
(Me. 1993) (statute applicable only to uncultivated lands); Williams v. Howell, 108 N.M. 225, 770 P.2d
870 (1989); Doenz v. Garber, 665 P.2d 932 (Wyo. 1983).
[FN5] § 116.
[FN6] § 124.
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AMJUR ADVERSE § 123
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AMJUR ADVERSE § 124
3 Am. Jur. 2d Adverse Possession § 124
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
ll. Elements and Requisites
H. Claim to Property
3. Color of Title
a. In General
Topic Summary Correlation Table References
§ 124. Effect
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 9 9 . 1
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 42 et seq.
Forms
Page 260 of 665
Page 1
Complaint, petition, or declaration-Allegation-Tacking prior possession under color of title. I B Am. JUT.
Pleading and Practice Forms, Adverse Possession § 136.
The requirements for acquiring title by adverse possession are sometimes less stringent if the claimant
enters under color of title than if the claimant does not.[ 1]
Color of title is required to extend an actual possession of a part of a tract of land constructively over the
rest ofit;[2] however, color of title, without actual possession, does not give constructive possession.[3]
Whether or not it is required by statute, an entty under color of title affords some evidence of the character
of the possession.[4] However, color of title is not of itself evidence of adverse possession, and adverse posses·
sion cannot necessarily be proved by less evidence when the entry is under color of title than when it is not.[5]
The existence of color of title does not dispense with the necessity for acts of adverse possession.[6]
[FNl] Harper v. Smith, 582 So. 2d 1089 (Ala. 1991) (shorter period of limitations); Clark v. Dillard,
233 Ark. 760, 346 S.W.2d 684 (1961); Peters v. Smuggler-Durant Min. Corp., 930 P.2d 575 (Colo.
1997) (shorter period of limitations); Georgia Power Co. v. Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997);
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3 Am. Jur. 2d Adverse Possession § 124
DeChambeau v. Estate of Smith, 132 Idaho 568, 976 P.2d 922 (1999) (shorter period of limitations);
Bell v. Gussenhoven, 132 Mont. 346, 318 P.2d 251 (1957); Di Leo v. Pecksto Holding Corporation, 304
N.Y. 505, 109 N.E.2d 600 (1952); Johnson v. McLamb, 247 N.C. 534, 101 S.E.2d 311 (1958).
As to the requirement under such statutes that the claimant pay property taxes, see § 151.
[FN2] White v. Hardisty, 220 Md. 152, 151 A.2d 764 (1959).
As to actual possession, generally, see §§ 16 et seq.
[FN3] White v. Hardisty, 220 Md. 152, 151 A.2d 764 (1959).
[FN4] Lowrey v. Mines, 253 Ala. 556, 45 So. 2d 703 (1950); Territory v. Pai-a, 34 Haw. 722, 1938 WL
6825 (1938); Ingram v. Jeffersonville, N.A. & S. Rapid Transit Co., 65 Ind. App. 532, 116 N.E. 12
(Div. I 1917); Sailer v. Mercer County, 77 N.D. 698,45 N.W.2d 206, 22 A.L.R.2d 988 (1950).
[FN5] Roe v. Doe ex demo Tennessee Coal, Iron & Ry. Co., 162 Ala. 151,50 So. 230 (1909); Rich-
bourg v. Rose, 53 Fla. 173,44 So. 69 (1907); McBeth v. Wetnight, 57 Ind. App. 47, 106 N.E. 407 (Div.
I 1914); Cothran v. Akers Motor Lines, Inc., 257 N.C. 782,127 S.E.2d 578 (1962).
[FN6] Leake v. Richardson, 199 Va. 967, 103 S.E.2d 227 (1958).
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AMJUR ADVERSE § 125
3 Am. Jur. 2d Adverse Possession § 125
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
Topic Summary Correlation Table References
§ 125. Necessity of a writing
West's Key Number Digest
H. Claim to Property
3. Color of Title
a. In General
West's Key Number Digest, Adverse Possession o€>99.1, 100(2)
A.L.R. Library
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6 § 3[(b)].
Page 262 of 665
Page I
In some states, a writing is considered to be indispensable to color of title----either as a matter of general
law[l] or because of statutory requirements-[2]so an oral transaction, however effective it may be as between
the parties, does not constitute color oftitle.[3]
In other states, however, color of title may exist in the absence of a writing.[4] Thus, in some jurisdictions,
possession under an oral gift or sale is possession under color oftitle.[5]
[FNI] Barrett v. Brewer, 153 N.C. 547, 69 S.E. 614 (1910); Urbanee v. Urbanee, 43 N.D. 127, 174
N.W. 880 (1919); State v. King, 77 W. Va. 37, 87 S.E. 170 (1915).
[FN2] Green v. Dixon, 727 So. 2d 781 (Ala. 1998); Snook v. Bowers, 12 P.3d 771 (Alaska 2000);
Lower Latham Ditch Co. v. Louden Irrigating Canal Co., 27 Colo. 267, 60 P. 629 (1900); Meyer v.
Law, 287 So. 2d 37 (Fla. 1973); Georgia Power Co. v. Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997);
Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147,2 A.L.R. 1453 (1917); Currier v. Gonzales,
78 N.M. 541,434 P.2d 66 (1967); General Greene Inv. Co. v. Greene, 48 N.C. App. 29, 268 S.E.2d 810
(1980); Power v. Kitching, 10 N.D. 254, 86 N.W. 737 (1901); Carnevale v. Dupee, 783 A.2d 404 (R.!.
2001).
[FN3] Territory v. Pai-a, 34 Haw. 722, 1938 WL 6825 (1938); Joplin Brewing Co. v. Payne, 197 Mo.
422,94 S.W. 896 (1906); Barrett v. Brewer, 153 N.C. 547, 69 S.E. 614 (1910); Lyles v. Fellers, 138
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S.c. 31,136 S.E. 13 (1926).
[FN4] Guaranty Title & Trust Corp. v. U. S., 264 U.S. 200, 44 S. Ct. 252, 68 L. Ed. 636 (1924); Davis
v. Biddle, 89 Ind. App. 361, 166 N.E. 301 (1929); Sowers v. Keedy, 135 Md. 448, 109 A. 143 (1919);
Russell v. Tennant, 63 W. Va. 623, 60 S.E. 609 (1908).
[FN5] § 133.
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Westlaw
AMJUR ADVERSE § 126
3 Am. Jur. 2d Adverse Possession § 126
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
Topic Summary Correlation Table References
H. Claim to Property
3. Color of Title
a. In General
§ 126. Necessity of purporting to convey particular property
West's Key Number Digest
West's Key Number Digest, Adverse Possession €;=100(4)
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 42, 43.
Judgment or decree as constituting color of title, 71 A.L.R. 2d 404 §§ 2, 4, 9.
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R. 2d 986 § I I.
Page I
For an instrument to be effective as color of title, it is generally necessary that it purport to convey the prop-
erty involved.[ I] A proper description of the premises in the instrument relied on as color of title is of vital im-
portance; if the description does not identify the land with the degree of certainty essential to ascertain the
boundaries and identity of the property, the instrument lacks one of the first essentials of color of title.[2] A deed
is not color of title if it is void for indefiniteness of description,[3] if the description is so bad that the land can-
not be located,[4] or if the lands are not described at all.[5]
A deed is color of title only for the land designated and described in it.[6] Because one cannot claim color
of title by deed beyond what the deed purports to convey,[7] a deed that describes part of a tract does not consti-
tute color of title to the part of the tract not described.[8] Also, the presence of an exception in a deed forbids the
grantee to claim under color of title any of the land embraced in the exception.[9]
Color of title cannot be based on a mistake as to the property actually described in a deed,[ I 0] but the mere
fact that a mistake has been made in describing the land is not fatal. [ II]
Observation:
If a deed on which adverse possession is based contains a vague and unsatisfactory description of the property,
and it is necessary for the purchaser to institute an investigation into the extent of the title purchased, which re-
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AMJUR ADVERSE § 126 Page 2
3 Am. Jur. 2d Adverse Possession § 126
veals facts and conditions that should put a reasonably prudent person on guard, it then devolves on the pur-
chaser to pursue every lead and ferret out all of the facts so that the purchase is not made until complete inform-
ation is available; and the purchaser who does not do this, but who purchases on erroneous assumptions and con-
clusions, does so at his or her own risk.[12]
[FNl] Napier v. Little, 137 Ga. 242, 73 S.E. 3 (1911); Shepherd v. Cox, 191 Miss. 715, 4 So. 2d 217,
136 A.L.R. 1346 (1941); Johnson v. McLamb, 247 N.C. 534,101 S.E.2d 311 (1958).
As to requisites of instrument purporting to convey property, see § 130.
[FN2] Brannan v. Henry, 142 Ala. 698, 39 So. 92 (1905); Snook v. Bowers, 12 P.3d 771 (Alaska 2000);
Worthen v. Rushing, 228 Ark. 445, 307 S.W.2d 890 (1957); Seton v. Swann, 650 So. 2d 35 (Fla. 1995);
Georgia Power Co. v. Irvin, 267 Ga. 760, 482 S.E.2d 362 (1997); Carney v. Heinson, 133 Idaho 275,
985 P.2d 1137 (1999); Holcomb v. Swift Coal & Timber Co., 251 Ky. 642, 65 S.W.2d 741 (1933);
Walker v. Polk, 208 Miss. 389, 44 So. 2d 477 (1950); Allen v. Morgan, 48 N.C. App. 706, 269 S.E.2d
753 (1980); Sowles v. Minot, 82 Vt. 344, 73 A. 1025 (1909); Waldron v. Harvey, 54 W. Va. 608, 46
S.E. 603 (1904) (partition decree); Doenz v. Garber, 665 P.2d 932 (Wyo. 1983).
[FN3] Bennett v. Rewis, 212 Ga. 800, 96 S.E.2d 257 (1957).
[FN4] Hughes v. Heard, 215 Ga. 156, 109 S.E.2d 510 (1959).
[FN5] Quality Plastics, Inc. v. Moore, 131 Ariz. 238, 640 P.2d 169 (1981); Hanna v. Palmer, 194 III.
41,61 N.E. 1051 (1901).
[FN6] Tilbury v. Osmundson, 143 Colo. 12,352 P.2d 102 (1960); John Wallingford Fruit House Inc. v.
MacPherson, 386 A.2d 332 (Me. 1978); Bums v. Crump, 245 N.C. 360, 95 S.E.2d 906 (1957); State
Bank & Trust of Kenmare v. Brekke, 1999 NO 212, 602 N.W.2d 681 (N.D. 1999).
Possession of the west half of a lot under a deed describing the east half was not possession under color
of title. Sorensen v. Costa, 32 Cal. 2d 453, 196 P.2d 900 (1948).
[FN7] Fritts v. Ericson, 87 Ariz. 227, 349 P.2d 1107 (1960).
[FN8] Johns v. Scobie, 12 Cal. 2d 618, 86 P.2d 820, 121 A.L.R. 1404 (1939); State Bank & Trust of
Kenmare v. Brekke, 1999 ND 212,602 N.W.2d 681 (N.D. 1999).
[FN9] Rye v. Baumann, 231 Ark. 278, 329 S.W.2d 161 (1959).
[FNIO] Fritts v. Ericson, 87 Ariz. 227, 349 P.2d 1107 (1960); John Wallingford Fruit House Inc. v.
MacPherson, 386 A.2d 332 (Me. 1978); State Bank & Trust of Kenmare v. Brekke, 1999 ND 212, 602
N.W.2d 681 (N.D. 1999).
[FNII] Acord v. Beaty, 244 Mo. 126,148 S.W. 901 (1912).
[FNI2] Boyet v. Perryman, 240 La. 339,123 So. 2d 79 (1960).
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3 Am. Jur. 2d Adverse Possession § 126
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AMJUR ADVERSE § 126
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Westli3w.
AMJUR ADVERSE § 127
3 Am. Jur. 2d Adverse Possession § 127
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
Topic Summary Correlation Table References
H. Claim to Property
3. Color of Title
a. In General
§ 127. Necessity of purporting to convey particular property-Adequacy of description
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 1 0 0 ( 4 )
Page 267 of 665
Page I
It is not required that a deed contain such a precise description that the land can be identified without refer-
ence to other records to support adverse possession,[l] or that the land be described in metes and bounds, if the
description in the deed permits the land to be identified with reasonable certainty.[2] If the facts warrant it, the
court should permit extrinsic evidence in aid of the description, provided the description given is susceptible of
being made definite by such evidence.[3]
[FNI] Quality Plastics, Inc. v. Moore, 131 Ariz. 238, 640 P.2d 169 (1981); Redfearn v. Kuhia, 50 Haw.
77, 43 I P.2d 945 (1967); Bruce v. Cheramie, 231 La. 881, 93 So. 2d 202 (1956).
A commissioner's deed that described the land conveyed as being bounded on the east by Montague
Street, on the north and south by lands described in certain deed books at specified pages, and on the
west by the land of a named person, contained a description capable of being made certain by testimony
at the trial so that it was sufficient to constitute color of title. Willis v. Johns, 55 N.C. App. 621, 286
S.E.2d 646 (1982).
[FN2] Snyder v. Bistrian, 156 A.D.2d 355, 548 N.Y.S.2d 311 (2d Dep't 1989).
[FN3] Canterberry v. Slade Bros., 232 La. 1081,96 So. 2d 4 (1957); Cadwalader v. Price, III Md. 310,
73 A. 273 (1909); Fore v. Berry, 94 S.c. 71, 78 S.E. 706 (1913).
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AMJUR ADVERSE § 127
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3 Am. Jur. 2d Adverse Possession § 127
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AMJUR ADVERSE § 128
3 Am. Jur. 2d Adverse Possession § 128
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
Topic Summary Correlation Table References
H. Claim to Property
3. Color of Title
a. In General
§ 128. Execution, acknowledgment, or recording
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=> 100(2)
A.L.R. Library
Page 269 of 665
Page I
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R. 2d 986 §§ 13 to 17, 26.
Validity is not generally required of an instrument relied on merely as color oftitle.[I] Therefore, a deed or
other conveyance may constitute sufficient color of title, even though it is not duly sealed[2] or acknowledged.[3
] Also, in the absence of a statutory requirement to the contrary, an instrument relied on as color of title gener-
ally need not be recorded.[4] Under some statutory provisions, however, recording is necessary for the instru-
ment to constitute color of title.[5] Thus, in some states, the statute of limitations does not begin to run until a
deed relied on as color of title has been placed on record.[6]
The principle that an unregistered deed is effective as color of title is sometimes so limited as not to defeat
the rights of innocent purchasers for value.[7]
[FNI] § 142.
[FN2] Power v. Kitching, 10 N.D. 254,86 N.W. 737 (1901).
[FN3] Brannan v. Henry, 142 Ala. 698, 39 So. 92 (1905).
[FN4] Perry v. Marbury Lumber Co., 212 Ala. 542, 103 So. 580 (1925); Roberson v. Downing Co., 120
Ga. 833,48 S.E. 429 (1904); Culton v. Simpson, 265 Ky. 343, 96 S.W.2d 856 (1936); Attorney General
v. Ellis, 198 Mass. 91, 84 N.E. 430 (1908); Eastman, Gardiner & Co. v. Hinton, 86 Miss. 604, 38 So.
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3 Am. Jur. 2d Adverse Possession § 128
779 (1905); Tungsten Holdings, Inc. v. Parker, 200 I MT 117, 305 Mont. 329,27 P.3d 429 (2001).
For the purpose of establishing possession and dominion under color of title, graveyard authorities
claiming title to realty by adverse possession were entitled to show that a deed for the property, which
was not recorded and could not be found, had actually been executed and delivered by the then owners
for a consideration. C. L. Gray Lumber Co. v. Pickard, 220 Miss. 419, 71 So. 2d 211, 41 A.L.R.2d 920
(1954).
[FN5] Lewis v. Hardin, 512 So. 2d 96 (Ala. 1987); Seton v. Swann, 650 So. 2d 35 (Fla. 1995); Justice
v. Mitchell, 238 N.C. 364, 78 S.E.2d 122 (1953); Cobb v. Robertson, 99 Tex. 138,86 S.W. 746 (1905),
affd on reh'g, 99 Tex. 138,87 S.W. 1148 (1905).
[FN6] Fallon v. Davidson, 137 Colo. 48, 320 P.2d 976 (1958).
[FN7] Rook v. Horton, 190 N.C. 180, 129 S.E. 450, 41 A.L.R. 1111 (1925).
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AMJUR ADVERSE § 128
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AMJUR ADVERSE § 129
3 Am. Jur. 2d Adverse Possession § 129
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., 8ill Lindsley, J.D., and Eric Surette, J.D.
n. Elements and Requisites
Topic Summary Correlation Table References
H. Claim to Property
3. Color of Title
a. In General
§ 129. Conveyance or deprivation of color of title
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=IOO(l)
Page 271 of 665
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One in possession of land under either an actual or a colorable title cannot, after the occupant has conveyed
whatever title was possessed, sustain a claim of adverse possession under a claimed color of title.[l] Likewise,
one in possession of land under an actual or colorable title generally is deprived of the color of title relied on to
sustain a claim of adverse possession on the involuntary sale of the land under authority of law, such as a sale
under execution on a judgment, or a tax sale, or a sale under a power of sale in a mortgage executed by the
claimant.[2] However, if a tax foreclosure decree does not expressly cancel or otherwise deal with the owner's
deed, that deed continues to constitute color oftille.[3]
[FNI] Cagle v. Sabine Valley Timber & Lumber Co., 109 Tex. 178,202 S.W. 942,6 A.L.R. 1426 (1918).
[FN2] Lowrey v. Mines, 253 Ala. 556, 45 So. 2d 703 (1950); Cooper v. Cook, 220 Ark. 344, 247
S.W.2d 957 (1952); Shepherd v. Cox, 191 Miss. 715,4 So. 2d 217, 136 A.L.R. 1346 (1941).
As to executions, generally, see 30 Am. JUT. 2d, Executions.
As to judicial sales, generally, see 47 Am. Jur. 2d, Judicial Sales.
As to foreclosure of mortgage by action and sale, generally, see 55 Am. Jur. 2d, Mortgages §§ 532 et seq.
[FN3] Clark v. Dillard, 233 Ark. 760, 346 S. W.2d 684 (1961).
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AMJUR ADVERSE § 129 Page 2
3 Am. Jur. 2d Adverse Possession § 129
rights reserved.
AMJUR ADVERSE § 129
END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 130
3 Am. JUT. 2d Adverse Possession § 130
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(I) In General
Topic Summary Correlation Table References
§ 130. Generally; instrument as purporting to convey title
West's Key Number Digest
West's Key Number Digest, Adverse Possession (;=99.1
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 42, 47.
Page 273 of665
Page I
"Color of title" is that which gives the semblance or appearance of title, but which is not title in fact[l]
-that which, on its face, professes to pass title, but fails to do so because of a lack of title in the person from
whom it comes or the employment of an ineffective means of conveyance. [2]
Color of title is not a claim of ownership that is defective for some technical reason, nor is it something just
short of absolute title; rather, color of title is an instrument or a record that in fact does not convey title, but ap-
pears to have the effect of a conveyance.[3] Color of title is a title that is imperfect, but not so obviously imper-
fect as to be apparent to one not skilled in the law.[4]
Any instrument that purports to convey land and shows the extent of the grantee's claim may afford color of
title for the purpose of adverse possession.[5]
If an instrument actually passes the title, it is not "color of title."[6] The title under which an adverse pos-
sessor claims need not be a good title; if it were a good title, the claimant would not be claiming by adverse pos-
session.[7] Color of title as a basis for adverse possession does not depend on the validity or effect of the instru-
ment, but entirely on its intent and meaning as an instrument purporting to convey title.[8]
A writing that does not on its face profess to pass title, but which expressly states that title will be conveyed
at a future time and on certain conditions, is not sufficient to constitute color oftitle.[9]
Possession of real property taken under authority of a statute is under color of title, even if the statute is un-
constitutional.[ I 0]
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3 Am. Jur. 2d Adverse Possession § 130
[FN1] Green v. Dixon, 727 So. 2d 781 (Ala. 1998); Weaver v. Stafford, 134 Idaho 691, 8 P.3d 1234
(2000); Glass v. Lynchburg Shoe Co., 212 N.C. 70, 192 S.E. 899 (1937); Power v. Kitching, 10 N.D.
254, 86 N.W. 737 (1901); Powers v. Malavazos, 25 Ohio App. 450, 6 Ohio L. Abs. 62, 158 N.E. 654
(4th Dist. Scioto County 1927); Sioux City Boat Club v. Mulhall, 79 S.D. 668, 117 N.W.2d 92 (1962);
Bassett v. City of Spokane, 98 Wash. 654, 168 P. 478 (1917); Selman v. Roberts, 185 W. Va. 80,404
S.E.2d 771 (1991).
[FN2] Fear v. Barwise, 93 Kan. 131, 143 P. 505 (1914); Justice v. Mitchell, 238 N.C. 364, 78 S.E.2d
122 (1953); Powers v. Malavazos, 25 Ohio App. 450, 6 Ohio L. Abs. 62, 158 N.E. 654 (4th Dist. Scioto
County 1927); Central Pac. Ry. Co. v. Tarpey, 51 Utah 107, 168 P. 554, I A.L.R. 1319 (1917); Knight
v. Boner, 459 P.2d 205 (Wyo. 1969).
As to the requirement ofa writing, see § 125.
[FN3] Green v. Dixon, 727 So. 2d 781 (Ala. 1998); Bergesen v. Clauss, 15 III. 2d 337, 155 N.E.2d 20,
68 A.L.R.2d 446 (1958); Long v. Pawlowski, 131 Mont. 91,307 P.2d 1079 (1957).
[FN4] Shippen v. Cloer, 213 Ga. 172,97 S.E.2d 563 (1957).
Title papers that were good enough in appearance and ostensible effect to give the holder the right to
the bona fide belief that he owned the land constituted color of title. Spicer v. Gore, 219 Md. 469, 150
A.2d 226 (1959).
[FN5] Appalachian Regional Healthcare, Inc. v. Royal Crown Bottling Co., Inc., 824 S.W.2d 878 (Ky.
1992).
[FN6] Roe v. Doe ex demo Tennessee Coal, Iron & Ry. Co., 162 Ala. 151, 50 So. 230 (1909); City of
Barnesville v. Stafford, 161 Ga. 588, 131 S.E. 487, 43 A.L.R. 1045 (1926); Abeles v. Pillman, 261 Mo.
359, 168 S.W. 1180 (1914); Morrison V. Linn, 50 Mont. 396, 147 P. 166 (1915); Stoll V. Gottbreht, 45
N.D. 158, 176 N.W. 932 (1920).
[FN7] John T. Clark Realty CO. V. Harris, 253 A.D. 325, 253 A.D. 908, 2 N.Y.S.2d 137 (2d Dep't 1938) .
[FN8] Davis v. Townsend, 435 So. 2d 1280 (Ala. 1983); Hubbard V. Curtiss, 684 P.2d 842 (Alaska
1984); Sullivan V. Neel, lOS Mont. 253, 73 P.2d 206 (1937); Smith V. Nyreen, 81 N.W.2d 769 (N.D. 1957).
As to effect of instrument as purporting to convey title to particular property, see § 126.
[FN9] Shippen V. Cloer, 213 Ga. 172,97 S.E.2d 563 (1957).
[FNIO] White V. Sparkill Realty Corporation, 280 U.S. 500, 50 S. Ct. 186,74 L. Ed. 578 (1930).
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3 Am. Jur. 2d Adverse Possession § 130
rights reserved.
AMJUR ADVERSE § 130
END OF DOCUMENT
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AMJUR ADVERSE § 131
3 Am. Jur. 2d Adverse Possession § 131
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(1) In General
Topic Summary Correlation Table References
§ 131. Defective instruments generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=99.1, 100(5)
Page 276 of665
Page 1
Generally, any instrument purporting to convey land may be color of title, however defective or imperfect it
is, and regardless of the reason for its invalidity; a claim to the land under such an instrument will be sufficient,
if the other requisites of adverse possession are present.[1] Color of title need not be an imperfect title of a sort
that could, without aider, ripen into absolute title; it need only show some evidence of claimed ownership by the
grantee, and therefore need be only some semblance of title, however invalid that claim may be.[2)
Observation:
The strict requirements for the validity of a deed have no application to the color of title requirement for adverse
possession because the interests of the legal owner, the public, and the purchaser are adequately served by com-
pliance with the elements of the doctrine of adverse possession.[3)
The question is not whether the instrument re1ied on conveys any actual title, but whether it appears to do
so; and if the instrument it purports on its face to convey title, it will constitute color of title even if it conveys
no title at all because of matters outside the instrument.[ 4) In fact, in the absence of statutory authority to the
contrary, color of title is generally effective even if there are defects on the face of the instrument oftitle.[5)
[FNl) Edmonson v. Colwell, 504 So. 2d 235 (Ala. 1987); Holub v. Titus, 120 Ark. 620, 180 S.W. 218
(1915); Johns v. Scobie, 12 Cal. 2d 618,86 P.2d 820, 121 A.L.R. 1404 (1939); Tarver v. Depper, 132
Ga. 798, 65 S.E. 177 (1909); Chapin v. Stewart, 71 Idaho 306, 230 P.2d 998 (1951); Tennis Coal Co. v.
Henseley, 198 Ky. 616, 250 S.W. 509 (1923); Allen v. Paggi Bros. Oil Co., 244 So. 2d 116 (La. Ct.
App. 3d Cif. 1971), writ denied, 258 La. 247, 245 So. 2d 716 (1971); Shepherd v. Cox, 191 Miss. 715,
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3 Am. Jur. 2d Adverse Possession § 131
I So. 2d 495, 136 A.L.R. 1346 (1941), error overruled on other grounds, 191 Miss. 715, 4 So. 2d 217,
136 A.L.R. 1346 (1941); Joplin Brewing Co. v. Payne, 197 Mo. 422, 94 S.W. 896 (1906); Seals v.
Seals, 165 N.C. 409, 81 S.E. 613 (1914); Mehard v. Little, 1921 OK 76, 81 Okla. I, 196 P. 536 (1921);
Theisen v. Qualley, 42 S.D. 367, 175 N. W. 556 (1919); Petrusic v. Carson, 496 P.2d 70 (Wyo. 1972).
[FN2] Bergesen v. Clauss, 15 Ill. 2d 337, 155 N.E.2d 20,68 A.L.R.2d 446 (1958).
[FN3] Williams v. Howell, 108 N.M. 225, 770 P.2d 870 (1989).
[FN4] Shepherd v. Cox, 191 Miss. 715, I So. 2d 495,136 A.L.R. 1346 (1941), error overruled on other
grounds, 191 Miss. 715, 4 So. 2d 217,136 A.L.R. 1346 (1941).
[FN5] Bradbury v. Dumond, 80 Ark. 82, 96 S.W. 390 (1906); Marr v. Shrader, 142 Colo. 106,349 P.2d
706 (1960); Witherspoon v. Brummett, 50 N.M. 303, 176 P.2d 187 (1946); Russell v. Tennant, 63 W.
Va. 623, 60 S.E. 609 (1908).
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AMJUR ADVERSE § 131
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AMJUR ADVERSE § 132
3 Am. Jur. 2d Adverse Possession § 132
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(1) In General
Topic Summary Correlation Table References
§ 132, Contract or mortgage
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£;=99.1
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 § 42.
Page 278 of 665
Page I
Color of title may be evidenced by a contract for the sale of land.[I] Thus, a contract for deed constitutes
color of title from and after its execution.[2]
Although there is authority to the contrary,[3] a mortgage of the fee has been held to be a written instrument
on which to base adverse possession, even though the mortgagor could not legally mortgage the fee; to hold oth-
erwise would, in effect, make it impossible to establish adverse possession on the basis of a written instrument if
it developed that the grantor's title was less than a fee.[4]
[FNI] Carrington v. McNeil, 58 A.D.2d 719, 396 N.Y.S.2d 286 (3d Dep't 1977); Long v. Pawlowski,
131 Mont. 91, 307 P.2d 1079 (1957); McNeeley v. South Penn Oil Co., 52 W. Va. 616, 44 S.E. 508 (1903).
As to tax sale contracts, see § 139.
[FN2] Wilson v. Divide County, 76 N.W.2d 896 (N.D. 1956).
[FN3] Slemmons v. Massie, 102 N.M. 33, 690 P.2d 1027 (1984).
[FN4]In re Harlem River Drive, City of New York, 307 N.Y. 447, 121 N.E.2d 414 (1954).
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AMJUR ADVERSE § 132
Page 2
3 Am. Jur. 2d Adverse Possession § 132
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AMJUR ADVERSE § 132
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AMJUR ADVERSE § 133
3 Am. Jur. 2d Adverse Possession § 133
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(I) In General
Topic Summary Correlation Table References
§ 133. Oral sale or gift; parol partition
West's Key Number Digest
West's Key Number Digest. Adverse Possession €::=99. I
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 44, 48.
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 §§ 3, 7,12.
Page 280 of 665
Page 1
In jurisdictions in which a writing is not essential to color of title,[l] possession under an oral gift or sale
may constitute color of title.[2] Thus, if a donee is placed in actual possession of land with a well-defined
boundary under an unqualified parol gift, and claims to the extent of the boundary, the possession of the entire
tract is vested in the donee, both the portion enclosed and cultivated and also the remainder of the land by con-
struction,[3] but if the boundaries of the parol gift are not well defined, the donee holds adversely only those
portions of the donated land as have been reduced to actual possession by enclosure or cultivation.[4]
In other jurisdictions, a parol gift of land does not constitute color of title,[5] and an oral gift of land cannot
support constructive possession.[6]
In jurisdictions in which color of title requires a writing purporting to be evidence of title, possession under
a parol gift or sale is not under color of title as to persons not in privity with the donor or seller.[7] However, as
between the donee or purchaser in possession under an oral gift and the donor or seller or a person in privity
with the donor or seller, the oral gift or sale is color oftitle.[8]
[FNI] § 125.
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AMJUR ADVERSE § 133
3 Am. Jur. 2d Adverse Possession § 133
[FN2] Wallerv. Dansby, 145 Ark. 306, 224 S.W. 615 (1920).
[FN3] Nelson v. Johnson, 189 Ky. 815,226 S.W. 94 (1920).
As to an enclosure as showing dominion over property, see §§ 36 to 40.
As to cultivation as constituting dominion over property, see § 32.
As to the constructive possession of an adverse claimant, see § 27.
[FN4] Nelson v. Johnson, 189 Ky. 815,226 S.W. 94 (1920).
Page 281 of 665
Page 2
[FN5] Philbin v. Carr, 75 Ind. App. 560, 129 N.E. 19 (1920); Page v. O'Neal, 207 Miss. 350, 42 So. 2d
391 (1949); Lyles v. Fellers, 138 S.c. 31, 136 S.E. 13 (1926).
[FN6] Lyles v. Fellers, 138 S.C. 31,136 S.E. 13 (1926).
[FN7] Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147,2 A.L.R. 1453 (1917).
As to character of instrument purporting to convey title to property, see § 126.
[FN8] Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147,2 A.L.R. 1453 (1917).
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AMJUR ADVERSE § 133
END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 134
3 Am. Jur. 2d Adverse Possession § 134
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(I) In General
Topic Summary Correlation Table References
§ 134. Descent cast
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>99. I
Page 282 of 665
Page I
Under the doctrine of descent cast, if a person dies in possession of land and possession is continued by that
person's heirs, the possession of the heirs corresponds to the holding of possession under color of title, even if
the ancestor had no color of title.[l] If the ancestor was never in possession, however, a conveyance to the an-
cestor cannot accrue to heirs as color of title on their taking possession after death of the ancestor.[2]
[FNI] Scott v. Bracy, 530 So. 2d 799 (Ala. 1988); Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So.
147,2 A.L.R. 1453 (1917).
[FN2] Brooks-Scanlon Co. v. Childs, 113 Miss. 246, 74 So. 147, 2 A.L.R. 1453 (1917); Barrett v.
Brewer, 153 N.C. 547, 69 S.E. 614 (1910).
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AMJUR ADVERSE § 134
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AMJUR ADVERSE § 135
3 Am. Jur. 2d Adverse Possession § 135
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(1) In General
Topic Summary Correlation Table References
§ 135. Patent; conveyance of or rights in public land
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 9 9 . 1
Page 283 of 665
Page 1
Color of title for purposes of adverse possession may be predicated on a patent if the patent is void.[ 1] Con-
firmation of a Spanish land grant also may be color of title.[2] A wholly unauthorized grant of public land,
however, that shows its invalidity on its face, is insufficient as the basis of a prescriptive tille.[3]
[FNl] Carson v. Turk, 146 Ky. 733, 143 S.W. 393 (1912).
[FN2] Del Pozo v. Wilson Cypress Co., 269 U.S. 82,46 S. Ct. 57, 70 L. Ed. 172 (1925), leave to file for
reh'g denied, 47 S. Ct. 235, 71 L. Ed. 1339 (U.S. 1926).
[FN3] Tiglao v. Insular Government of Philippine Islands, 215 U.S. 410, 30 S. CI. 129, 54 L. Ed. 257
(1910).
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AMJUR ADVERSE § 136
3 Am. Jur. 2d Adverse Possession § 136
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(2) Judgments and Decrees
Topic Summary Correlation Table References
§ 136, Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£=99.1
A. L. R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 45, 46.
Judgment or decree as constituting color of title, 71 A.L.R. 2d 404.
Page I
A defective judgment or decree of a court of record may constitute color of title in one who takes possession
under it.[I] Particular types of invalid or imperfect judgments or decrees that have been held to constitute color
of title include:
- ajudgment or decree quieting title to, or removing a cloud on title from, the land in question.[2]
- a judgment or decree in partition proceedings.[3]
- a judgment, order, or decree of a probate or comparable court,[4] such as a decree of distribution,[5] a
decree ofheirship,[6] or an order and confirmation of sale of real property by a probate court.[7]
- ajudgment or decree in divorce proceedings.[8]
- a judgment purporting to vest title to the land ofa husband in his wife.[9]
- a judgment, order, or decree setting apart real property to a widow or to a widow and minor children.[ I 0]
An ejectment judgment in favor of a person cannot form the basis for color of title for that person or one
claim ing under that person, because such a judgment does not purport to convey title, as required for instruments
to be color of title.[II] Similarly, because an ex parte judgment sending heirs or legatees into possession of an
estate is not, and does not purport to be, a transfer of title, it cannot serve as a basis for adverse possession.[12]
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[FNI] David v. Tucker, 140 Ga. 240, 78 S.E. 909 (1913); Peters v. Dicus, 254 Ill. 379, 98 N.E. 560
(1912); Quintana v. Montoya, 64 N.M. 464, 330 P.2d 549, 71 A.L.R.2d 397 (1958); Perry v. Bassenger,
219 N.C. 838, 15 S.E.2d 365 (1941); Smith v. Nyreen, 81 N.W.2d 769 (N.D. 1957); Southern Iron &
Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785 (1911); Waldron v. Harvey, 54 W. Va. 608,46 S.E.
603 (1904).
As to requisites of instrument purporting to convey property, see § 126.
[FN2] Satariano v. Galletto, 66 Cal. App. 2d 813, 153 P.2d 201 (1st Dist. 1944); Marvin v. Witherbee,
63 Colo. 469, 168 P. 651 (1917); Wallis v. Clinkenbeard, 214 Iowa 343, 242 N.W. 86 (1932); Quintana
v. Montoya, 64 N.M. 464, 330 P.2d 549, 71 A.L.R.2d 397 (1958).
[FN3] Peters v. Dicus, 254 Ill. 379, 98 N.E. 560 (1912); John L. Roper Lumber Co. v. Richmond Cedar
Works, 165 N.C. 83, 80 S.E. 982 (1914); Tellico Mfg. Co. v. Williams, 59 S.W. 1075 (Tenn. Ch. App.
1900).
[FN4] Quick v. Quick, 267 Ala. 560, 103 So. 2d 157 (1958); Stacy v. Simpson, 91 N.M. 350, 573 P.2d
1205 (1978).
[FN5] Baker v. Baker, 4 Cal. 2d 235, 48 P.2d 685 (1935); Cranston v. Winters, 238 N.W.2d 647 (N.D.
1976); Records v. Miles, 1948 OK 71, 200 Okla. 62, 191 P.2d 918 (1948); Nicholas v. Cousins, I
Wash. App. 133,459 P.2d 970 (Div. 3 1969).
[FN6] Chapin v. Letcher, 93 N.W.2d 415 (N.D. 1958).
[FN7] Belsher v. Russell, 218 Ala. 597, 119 So. 659 (1928).
[FN8] Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956); Cobb v. Brown, 42 Tenn. App. 595,
305 S.W.2d 241 (1956) (disapproved of on other grounds by, Howard v. State, 217 Tenn. 556, 399
S.W.2d 738 (1966)); Weaver v. Garrietty, 84 S.W.2d 878 (Tex. Civ. App. Dallas 1935), writ refused.
But see McMann v. McMann, 1926 OK 992, 123 Okla. 26, 252 P. 1093 (1926), holding that a judgment
of a divorce court purporting to vest title to land in the minor children of the parties to the divorce,
which was void because of lack of jurisdiction, did not afford color of title in the children.
[FN9] Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956).
[FNIO] Quick v. Quick, 267 Ala. 560, 103 So. 2d 157 (1958); Satariano v. Galletto, 66 Cal. App. 2d
813,153 P.2d 201 (1st Dis!. 1944); Wanamaker v. Wanamaker, 215 Ga. 473,111 S.E.2d 94 (1959).
[FNII] Southern Iron & Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785 (1911).
As to requisites of instrument purporting to convey property, see § 126.
[FNI2] Boyet v. Perryman, 240 La. 339,123 So. 2d 79 (1960).
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AMJUR ADVERSE § 136
3 Am. Jur. 2d Adverse Possession § 136
AMJUR ADVERSE § 136
END OF DOCUMENT
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AMJUR ADVERSE § 137
3 Am. Jur. 2d Adverse Possession § 137
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
11. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(2) Judgments and Decrees
Topic Summary Correlation Table References
§ 137. Instrument evidencing a judicial or sheriffs sale
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 9 9 . 1
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 45, 46.
Page 287 of 665
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A deed given to a purchaser at a judicial sale that is ineffectual as a conveyance will confer color of title on
the purchaser.[ I J
A sheriffs deed that is valid on its face also will constitute color of title.[2J Also a sheriffs certificate of
sale constitutes color of title on which title by adverse possession may be founded.[3J
Color of title may also exist under a special master's deed in foreclosure[4J or partition if the proceedings
were irregular;[5J under the deed of an executor or administrator made pursuant to a void order of sale;[6J or un-
der a guardian's deed executed pursuant to a void sale by the guardian.[7)
[FN I J Joplin Brewing Co. v. Payne, 197 Mo. 422, 94 S. W. 896 (1906).
[FN2J O'Reilly v. Balkwill, 133 Colo. 474, 297 P.2d 263 (1956).
In an action brought by the widow of a purchaser of land under a 1947 sheriffs deed against the heirs of
the owner, whose title was divested in the 1947 tax sale, the sheriffs deed was sufficient to start the
running of the five-year statute of limitations in favor of the purchaser after the two-year redemption
period had expired and, because the purchaser went into possession of the realty and exercised domin-
ion and control over the land until his death in 1971, his title was perfected, notwithstanding claims by
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3 Am. Jur. 2d Adverse Possession § 137
the heirs of the original owner that neither they nor their predecessors in title were named in or received
notice of the tax suit through which the purchaser received the sheriffs deed in question. Hunter v.
Dodds, 624 S.W.2d 365 (Tex. App. Waco 1981).
[FN3] Commercial Bank & Trust Co. v. Jordan, 85 Mont. 375,278 P. 832, 65 A.L.R. 968 (1929).
[FN4] Matlock v. Somerford, 64 N.M. 347, 328 P.2d 600 (1958).
[FN5] Weston v. Morgan, 162 S.c. 177,160 S.E. 436 (1931).
[FN6] Millican v. McNeill, 102 Tex. 189,114 S.W. 106 (1908).
[FN7] Hamilton v. Witner, 50 Wash. 689,97 P. 1084 (1908).
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AMJUR ADVERSE § 138
3 Am. Jur. 2d Adverse Possession § 138
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(3) Tax Deeds, Certificates, and Contracts of Sale
Topic Summary Correlation Table References
§ 138. Tax deed
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=99.1, 100(6)
A.L.R. Library
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R. 2d 986.
Forms
Page 289 of 665
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Complaint, petition, or declaration-Allegation-Possession under defective tax deed. I BAm. Jur. Plead-
ing and Practice Fonns, Adverse Possession § 138.
A tax deed generally constitutes color of title for the purpose of adverse possession.[1] Thus, as a general
rule, tax deeds may serve as color of title on which to base adverse possession, whether or not the tax deed pro-
ceedings were valid.[2] A tax deed that is regular on its face, but that is defective as a conveyance due to certain
irregularities,[3] or that is void,[4] constitutes color of title, provided the property intended to be conveyed is de-
scribed with sufficient certainty and definiteness,[S] and provided the tax deed was not fraudulently obtained.[6]
Color of title has been held to be present under a tax deed although the tax sale was had under an unconsti-
tutional statute[7] or under a void tax judgment;[8] although it was based on a void assessment,[9] although it
was not conducted as a public sale;[IO] although it was conducted at a time and place other than that designated
by law;[ II] and although the officer who conducted the sale was guilty of a violation of duty with regard to it.[ 12]
A tax purchase that is in effect a redemption does not vest color oftitle.[13]
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[FNI] Bell v. Pritchard, 273 Ala. 289, 139 So. 2d 596 (1962); Beshea v. Vlazny, 228 Ark. 559, 309
S.W.2d 28 (1958); Monroe v. Rawlings, 331 Mich. 49, 49 N.W.2d 55 (1951); Trotter v. Roper, 229
Miss. 784, 89 So. 2d 596 (1956); Cebolleta Land Grant, ex reI. Bd. of Trustees of Cebolleta Land Grant
v. Romero, 98 N.M. 1,644 P.2d 515 (1982); Sickler v. Pope, 326 N.W.2d 86 (N.D. 1982); Kimble v.
Allen, 1956 OK 135,298 P.2d 1042 (Okla. 1956).
[FN2] Griswold v. Lagge, 132 Mont. 23, 313 P.2d 1013 (1957).
[FN3] Brannan v. Henry, 142 Ala. 698, 39 So. 92 (1905); Bradbury v. Dumond, 80 Ark. 82, 96 S.W.
390 (1906); Walters v. Webster, 52 Colo. 549, 123 P. 952 (1912); Douglass v. Aldridge, 90 Fla. 51, 105
So. 145 (1925); Pickens v. Adams, 7 111. 2d 283, 131 N.E.2d 38, 56 A.L.R.2d 605 (1955); Tibbetts v.
Holway, 119 Me. 90, 109 A. 382 (1920); Ripley v. Miller, 165 Mich. 47, 130 N.W. 345 (1911); Carney
v. Anderson, 214 Miss. 504, 58 So. 2d 13,38 A.L.R.2d 981 (1952); Woodside v. Durham, 317 Mo. 15,
295 S.W. 772, 53 A.L.R. 884 (1927); Beall v. McMenemy, 63 Neb. 70, 88 N.W. 134 (1901); Anderson
v. Shelton, 92 N.W.2d 166, 73 A.L.R.2d 1087 (N.D. 1958); Herron v. Swarts, 1960 OK 53, 350 P.2d
314 (Okla. 1960); WeIner v. Stearns, 40 Utah 185, 120 P. 490 (1911).
As to invalidity shown on face of tax deed, see § 140.
[FN4] Green v. Dixon, 727 So. 2d 781 (Ala. 1998); Bradbury v. Dumond, 80 Ark. 82, 96 S.W. 390
(1906); Trotter v. Roper, 229 Miss. 784, 92 So. 2d 230 (1957); Myers v. De Lisle, 259 Mo. 506, 168
S.W. 676 (1914); Long v. Pawlowski, 131 Mont. 91, 307 P.2d 1079 (1957); Beall v. McMenemy, 63
Neb. 70, 88 N.W. 134 (1901); Greenleaf v. Bartlett, 146 N.C. 495, 60 S.E. 419 (1908); Sailer v. Mercer
County, 77 N.D. 698, 45 N.W.2d 206, 22 A.L.R.2d 988 (1950); Kimble v. Allen, 1956 OK 135, 298
P.2d 1042 (Okla. 1956); WeIner v. Steams, 40 Utah 185, 120 P. 490 (1911).
[FN5] § 126.
[FN6] Payne v. Williams, 91 Ill. App. 3d 336, 46111. Dec. 783, 414 N.E.2d 836 (5th Dist. 1980).
As to the requirement of good faith, see § 112.
[FN7] Bradbury v. Dumond, 80 Ark. 82, 96 S. W. 390 (1906).
[FN8] Woodside v. Durham, 317 Mo. 15,295 S.W. 772, 53 A.L.R. 884 (1927).
[FN9] Florida Finance Co. v. Sheffield, 56 Fla. 285, 48 So. 42 (1908); Jacobs v. Southern Advance Bag
& Paper Co., 228 La. 462, 82 So. 2d 765 (1955).
[FNIO] Doe v. Roe, 234 Ga. 127,214 S.E.2d 880 (1975).
[FNII] Carney v. Anderson, 214 Miss. 504, 58 So. 2d 13,38 A.L.R.2d 981 (1952).
[FN 12] Greenleaf v. Bartlett, 146 N.C. 495, 60 S.E. 419 (1908).
[FNI3] Rouse v. Teeter, 214 Ark. 488, 216 S.W.2d 869 (1948).
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3 Am. Jur. 2d Adverse Possession § 138
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AMJUR ADVERSE § 139
3 Am. Jur. 2d Adverse Possession § 139
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
ll. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(3) Tax Deeds, Certificates, and Contracts of Sale
Topic Summary Correlation Table References
§ 139. Tax purchase certificate or tax sale contract
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=91, 99.1, 100(6)
Page 292 of 665
Page I
In some jurisdictions, a tax purchase certificate, under the statutory definition and limitations imposed re-
specting the use of evidences of title for prescriptive or limitation purposes, cannot be construed to purport to
convey title, and cannot, irrespective of its invalidity, become color of title.[1] However, in other cases, a certi-
ficate of purchase issued at a tax sale has been held to be color oftitle.[2)
A tax sale contract between a county whose title under its tax deed is void and a tax sale purchaser vests the
purchaser with color oftitle.[3)
[FNI) Kenworthy v. Murphy, 1951 OK 13,204 Okla. 233, 228 P.2d 382 (1951); Bozievich v. Slechta,
109 Utah 373,166 P.2d 239 (1946).
As to requisites of instrument purpotting to convey property, see § 126.
[FN2) Power v. Kitching, 10 N.D. 254, 86 N.W. 737 (1901); Calvary Baptist Church of Baker v. Sax-
ton, 117 Or. 125,242 P. 616 (1925).
[FN3) Anderson v. Shelton, 92 N.W.2d 166,73 A.L.R.2d 1087 (N.D. 1958).
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3 Am. Jur. 2d Adverse Possession § 139
END OF DOCUMENT
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AMJUR ADVERSE § 140
3 Am. Jur. 2d Adverse Possession § 140
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(3) Tax Deeds, Certificates, and Contracts of Sale
Topic Summary Correlation Table References
§ 140. Invalidity on the face of a tax deed or tax sale proceeding
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=99.1, 100(6)
A.L.R. Library
Page 294 of 665
Page I
Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R. 2d 986 §§ 9,10.
It has been held that a tax deed constitutes color of title to the land even if it is absolutely void, and even if
the cause of the invalidity appears on the face of the deed, if the deed follows the ordinary form for such deeds,
is executed by an official having general authority to make such deeds, and purports by apt words to convey land
either described accurately or so referred to as to permit of its accurate identification.[l] However, it has also
been held that a tax deed that is void on its face is not in itself sufficient to set the statute of limitations in mo-
tion.[2]
[FNI] Brannan v. Henry, 142 Ala. 698, 39 So. 92 (1905); Bradbury v. Dumond, 80 Ark. 82, 96 S.W.
390 (1906); Walters v. Webster, 52 Colo. 549, 123 P. 952 (1912); Florida Finance Co. v. Sheffield, 56
Fla. 285, 48 So. 42 (1908); Hanna v. Palmer, 194111. 41, 61 N.E. 1051 (1901); Carney v. Anderson, 214
Miss. 504, 58 So. 2d 13, 38 A.L.R.2d 981 (1952); Greenleaf v. Bartlett, 146 N.C. 495, 60 S.E. 419
(1908); Grandin v. Gardiner, 63 N.W.2d 128 (N.D. 1954); Wilson v. Hestand, 1956 OK 187,301 P.2d
194 (Okla. 1956); Buty v. Goldfinch, 74 Wash. 532, 133 P. 1057 (1913).
As to the requisites of an instrument purporting to convey property, see § 126.
[FN2] Mathews v. Blake, 16 Wyo. 116,92 P. 242 (1907).
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3 Am. Jur. 2d Adverse Possession § 140
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AMJUR ADVERSE § 140
END OF DOCUMENT
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AMJUR ADVERSE § 141
3 Am. Jur. 2d Adverse Possession § 141
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(4) Deeds
Topic Summary Correlation Table References
§ 141. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=100(1)
Page 296 of 665
Page 1
Color of title may be evidenced by a deed,[ I] including a quitclaim deed[2] or a deed for partition.[3]
[FN I] Cothran v. Akers Motor Lines, Inc., 257 N.C. 782, 127 S.E.2d 578 (1962).
[FN2] Warlick v. Rome Loan & Finance Co., 194 Ga. 419, 22 S.E.2d 61 (1942); Waterman Hall v. Wa-
terman, 220 Ill. 569, 77 N.E. 142 (1906); Bel v. Manuel, 234 La. 135, 99 So. 2d 58 (1958); Lambert v.
State, 211 Miss. 129,51 So. 2d 201 (1951); Schumacher v. Cole, 131 Mont. 166,309 P.2d 311 (1957);
Thurmond v. Espalin, 50 N.M. 109, 171 P.2d 325 (1946); Morrison v. Hawksett, 64 N.W.2d 786 (N.D.
1954); Graniteville Co. v. Williams, 209 S.c. 112, 39 S.E.2d 202 (1946); Lloyd v. Mills, 68 W. Va.
241,69 S.E. 1094 (1910).
As to the operation and effect of quitclaim deeds, generally, see 23 Am. Jur. 2d, Deeds § 286.
[FN3] Bingham v. Brooks, 359 S.W.2d 618 (Ky. 1962).
As to effect of partition, generally, see 59A Am. Jur. 2d, Partition §§ 286 et seq.
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AMJUR ADVERSE § 142
3 Am. Jur. 2d Adverse Possession § 142
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(4) Deeds
Topic Summary Correlation Table References
§ 142. Void or voidable deed or conveyance
West's Key Number Digest
West's Key Number Digest, Adverse Possession cC=100(5)
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 42, 43.
Page 297 of 665
Page I
Because the very act of claiming title by adverse possession for the statutory period precludes the idea of a
valid paper title, as do the words "color of title,"[I] the requirements as to color oftitle are sufficiently complied
with by a possession held under an instrument which, as a conveyance, is either voidable or void.[2] Thus, an
adverse possessor may claim under a color of title of a defective or imperfect instrument, such as one made by a
grantor or a predecessor who was without title or interest[3] or had no authority to convey.[4]
A void deed from a county constitutes color of title,[5] as does a void deed from a state land commissioner.[
6] A deed from one who obtained the deed pursuant to a defective or void foreclosure also constitutes color of
title. [7] However, under some statutes, instruments the invalidity of which is apparent to persons of ordinary
prudence cannot be effective as color of title.[8] Also, a deed that is void for indefiniteness of description cannot
constitute color oftitle.[9]
CUMULATIVE SUPPLEMENT
Cases:
Void tax deed cannot convey color of title such as would support adverse possession. Memorial Park Med-
ical Center, Inc. v. River Bend Development Group, L.P., 264 S. W.3d 810 (Tex. App. Eastland 2008), reh'g
overruled, (Aug. 14,2008).
lEND OF SUPPLEMENTI
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3 Am. Jur. 2d Adverse Possession § 142
[FNI]§130.
[FN2] Work v. United Globe Mines, 231 U.S. 595, 34 S. Ct. 274, 58 L. Ed. 389 (1914); Bell v.
Pritchard, 273 Ala. 289, 139 So. 2d 596 (1962); Carpenter v. Booker, 131 Ga. 546, 62 S.E. 983 (1908);
Waterman Hall v. Waterman, 220 Ill. 569, 77 N.E. 142 (1906); J.B. Gathright Land Co. v. Begley, 200
Ky. 808,255 S.W. 837 (1923); Novak v. Trustees of Orphans' Home in Baltimore City, 123 Md. 161,
90 A. 997 (1914); C. L. Gray Lumber Co. v. Pickard, 220 Miss. 419, 71 So. 2d 211, 41 A.L.R.2d 920
(1954); Sullivan v. Neel, 105 Mont. 253, 73 P.2d 206 (1937); Criswell v. Criswell, 101 Neb. 349, 163
N.W. 302 (1917); Turner v. Sanchez, 50 N.M. 15, 168 P.2d 96, 164 A.L.R. 1280 (1946); Alsworth v.
Richmond Cedar Works, 172 N.C. 17, 89 S.E. 1008 (1916); Frady v. Ivester, 129 S.c. 536, 125 S.E.
134 (1924); Hamilton v. Wilner, 50 Wash. 689, 97 P. 1084 (1908); Laing v. Gauley Coal Land Co., 109
W. Va. 263, 153 S.E. 577, 71 A.L.R. 436 (1930); Marky Inv., Inc. v. Arnezeder, 15 Wis. 2d 74, 112
N.W.2d 211 (1961).
[FN3] Lambert v. State, 211 Miss. 129,51 So. 2d 201 (1951); In re Harlem River Drive, City of New
York, 307 N.Y. 447, 121 N.E.2d 414 (1954).
But see Hannah v. Kenny, 210 Ga. 824, 83 S.E.2d I (1954), holding that a person who purchased land
from a mere squatter with knowledge of the squatter's lack of title could not acquire the land by posses-
sion of it for the statuto!), period under the conveyance from the squatter.
[FN4] Commercial Bldg. Co. v. Parslow, 93 Fla. 143, 112 So. 378 (1927); Attorney General v. Ellis,
198 Mass. 91, 84 N.E. 430 (1908); Barrett v. Brewer, 153 N.C. 547, 69 S.E. 614 (1910); Brewster v.
Herron, 1952 OK 440, 267 P.2d 143,38 A.L.R.2d 335 (Okla. 1952).
A deed from a public corporation that was defective as failing to show that it was within the corpora-
tion's authority to execute could afford color of title sufficient to support a claim of adverse possession.
Turner v. Sanchez, 50 N.M. 15, 168 P.2d 96, 164 A.L.R. 1280 (1946).
[FN5] Wilson v. Divide County, 76 N.W.2d 896 (N.D. 1956).
[FN6] Fuller v. Terrill, 226 Ark. 1040,295 S.W.2d 625 (1956).
[FN7] Corbett v. Corbett, 249 N.C. 585,107 S.E.2d 165 (1959).
[FN8] Boyet v. Perryman, 240 La. 339, 123 So. 2d 79 (1960); Bel v. Manuel, 234 La. 135, 99 So. 2d 58
(1958).
[FN9] § 127.
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AMJUR ADVERSE § 142
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Page 3
3 Am. Jur. 2d Adverse Possession § 142
END OF DOCUMENT
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AMJUR ADVERSE § 143
3 Am. Jur. 2d Adverse Possession § 143
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(4) Deeds
Topic Summary Correlation Table References
§ 143. Fraudulent deed
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>100(5)
Page 300 of 665
Page 1
A deed will give color of title so as to permit a plea of the statute of limitations by the grantee if the grantor
is chargeable with ITaud, as long as the grantee accepted the deed in good faith without knowledge of the fraud.[
I] Thus, the occurrence of fraud is considered immaterial by some courts.[2] However, actual fraud is neither
sanctioned nor cured by the statute oflimitations.[3]
Under a rule that any deed that is not forged or void on its face will support the running of the statute of
limitations, a deed that is void because it is in ITaud of creditors supports the statute.[4]
[FN1] Farabow v. Perry, 223 N.C. 21, 25 S.E.2d 173 (1943).
As to requirement of good faith, generally, see § 112.
[FN2] Turner v. Sanchez, 50 N.M. 15, 168 P.2d 96, 164 A.L.R. 1280 (1946); Farabow v. Perry, 223
N.C. 21, 25 S.E.2d 173 (1943); Bora v. Hidell, 122 Tenn. 80, 120 S.W. 961 (1909); Marky Inv., Inc. v.
Arnezeder, 15 Wis. 2d 74,112 N.W.2d 211 (1961).
[FN3] § 115.
[FN4] Eckert v. Wendel, 120 Tex. 618,40 S.W.2d 796, 76 A.L.R. 855 (1931).
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3 Am. Jur. 2d Adverse Possession § 143
AMJUR ADVERSE § 143
END OF DOCUMENT
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AMJUR ADVERSE § 144
3 Am. Jur. 2d Adverse Possession § 144
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(4) Deeds
Topic Summary Correlation Table References
§ 144. Forged deed or bond for title
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>100(5)
A.L.R. Library
Forged deed or bond for title as constituting color of title, 68 A.L.R. 2d 452 §§ 2 to 5.
Page 302 of 665
Page I
A forged deed or bond for title may be relied on by one claiming adverse possession, as constituting color of
title,[I] provided the claimant acts in good faith and is without knowledge of the forgery.[2] Thus, although a
forged deed cannot of itself convey title, it can, as color of title, constitute one necessary step to the acquisition
of title by adverse possession under color of title.[3] Accordingly, a forged deed, accepted by the named grantee
for a valuable consideration and in the bona fide belief that it is regular in all respects, is sufficient color of title
for adverse possession purposes.[4]
[FNI] Bergesen v. Clauss, 15 111. 2d 337, 155 N.E.2d 20, 68 A.L.R.2d 446 (1958); Tennis Coal Co. v.
Henseley, 198 Ky. 616, 250 S.W. 509 (1923).
[FN2] Tennis Coal Co. v. Henseley, 198 Ky. 616, 250 S.W. 509 (1923); Menefee v. Pipes, 159 So. 2d
439 (La. Ct. App. 2d Cir. 1963), writ refused, 245 La. 798,161 So. 2d 276 (1964).
As to the requirement of good faith, generally, see § 112.
[FN3] Bergesen v. Clauss, 15 111. 2d 337, 155 N .E.2d 20, 68 A.L.R.2d 446 (1958).
[FN4] Bergesen v. Clauss, 15111. 2d 337, 155 N.E.2d 20,68 A.L.R.2d 446 (1958).
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AMJUR ADVERSE § 144 Page 2
3 Am. Jur. 2d Adverse Possession § 144
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AMJUR ADVERSE § 144
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AMJUR ADVERSE § 145
3 Am. Jur. 2d Adverse Possession § 145
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
H. Claim to Property
3. Color of Title
b. What Constitutes Color of Title
(4) Deeds
Topic Summary Correlation Table References
§ 145. Deed or executory contract by a cotenant
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>\OO(l)
A.L.R. Library
Page 304 of 665
Page I
Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R. 2d
1214§11.
A deed by one cotenant purporting to convey the entire estate is unquestionably sufficient as color of title to
the entire estate.[I] If one cotenant assumes to convey the entire estate, or any part of it, the deed or other instru-
ment, though legally insufficient, constitutes color of title in the grantee, and an adverse possession under it for
the statutory period will ripen into title as against all cotenants.[2] The deed need not be recorded for it to oper-
ate as color oftitle.[3]
An executory contract by a cotenant to convey the whole property is also color of title under which title by
prescription may be acquired.[4]
Ordinarily, a conveyance by one cotenant of only a part of common property, or of an individual interest in
the property, to a stranger, and entry of the stranger under the deed, does not constitute an ouster of the grantor's
cotenants as to the residue of the common property or the beginning of adverse possession.[5] However, an
entry under such a deed may constitute a basis for adverse possession if the conveyance was made pursuant to a
void power of attorney made to the grantor by the other cotenants; the power of attorney, though void, consti-
tutes a basis for color oftitle.[6]
While a quitclaim deed that conveys only the right, title, and interest of the grantor in the property limits the
estate to the right and interest as the grantor may have, and, if the grantor is a cotenant, the deed is not color of
title for anything more than the interest of the grantor,[7] a quitclaim deed by one cotenant purporting to convey
all interest in a particular tract can be considered as color of title, because it purports to convey more than the
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title and interest of the grantor.[8]
[FNI] Thompson v. Odom, 279 Ala. 211, 184 So. 2d 120 (1966); Jones v. Tate, 68 N.M. 258, 360 P.2d
920 (1961).
As to effect of a conveyance by a cotenant to a stranger, generally, see §§ 215 et seq.
[FN2] Kidd v. Borum, 181 Ala. 144,61 So. 100 (1913); Murray v. Quigley, 119 Iowa 6, 92 N.W. 869
(1902); Vonfeldt v. Schneidewind, 109 Kan. 265, 198 P. 958 (1921); Sowers v. Keedy, 135 Md. 448,
109 A. 143 (1919); Joyce v. Dyer, 189 Mass. 64, 75 N.E. 81 (1905); Eastman, Gardiner & Co. v. Hin-
ton, 86 Miss. 604, 38 So. 779 (1905); Sudduth v. Sumeral, 61 S.C. 276, 39 S.E. 534 (1901); Virginia
Coal & Iron Co. v. Hylton, 115 Va. 418, 79 S.E. 337 (1913); Lloyd v. Mills, 68 W. Va. 241, 69 S.E.
1094 (1910).
[FN3] § 128.
[FN4] Lloyd v. Mills, 68 W. Va. 241, 69 S.E. 1094 (1910).
[FN5] Laing v. Gauley Coal Land Co., 109 W. Va. 263,153 S.E. 577, 71 A.L.R. 436 (1930).
[FN6] Laing v. Gauley Coal Land Co., 109 W. Va. 263,153 S.E. 577, 71 A.L.R. 436 (1930).
[FN7] Cook v. Rochford, 60 So. 2d 531,32 A.L.R.2d 1210 (Fla. 1952).
[FN8] Waterman Hall v. Waterman, 220 Ill. 569, 77 N.E. 142 (1906); Lloyd v. Mills, 68 W. Va. 241, 69
S.E. 1094 (1910).
As to the sufficiency of a quitclaim deed by a cotenant as a basis for adverse possession by the grantee,
generally, see § 192.
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AMJUR ADVERSE § 145
END OF DOCUMENT
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AMJUR ADVERSE II I REF
3 Am. Jur. 2d Adverse Possession II I Refs.
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Topic Summary Correlation Table
Research References
West's Key Number Digest
II. Elements and Requisites
I. Payment of Taxes
West's Key Number Digest, Adverse Possession -£=86 to 95
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 26.5
A.L.R. Index: Adverse Possession
Trial Strategy
Acquisition of Title to Property by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 26 I
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession §§ lIS, 145 to 148, 165
Page 306 of 665
Page I
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AMJUR ADVERSE 111 REF
END OF DOCUMENT
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Westiaw.
AMJUR ADVERSE § 146
3 Am. Jur. 2d Adverse Possession § 146
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
I. Payment of Taxes
Topic Summary Correlation Table References
§ 146. Generally; necessity
West's Key Number Digest
West's Key Number Digest, Adverse Possession 87
A.L.R. Library
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6 §§ 3, 13.
Acquisition of title to mines or minerals by adverse possession, 35 A.L.R. 2d 124 § 19.
Trial Strategy
Page 307 of 665
Page I
Proof of payment of property taxes based on value of encroachment. Acquisition of Title to Property by Ad·
verse Possession, 39 Am. Jur. Proof of Facts 2d 261 §§ 36 et seq.
Forms
Complaint, petItIOn, or declaration-Allegation-Adverse possession under claim of right-Payment of
taxes. I BAm. Jur. Pleading and Practice Forms, Adverse Possession § lIS.
Instruction to jury-Effect of payment of taxes. IB Am. Jur. Pleading and Practice Forms, Adverse Posses·
sion § 165.
In the absence of a statutory requirement to that effect, a claimant under adverse possession is not required
to prove the payment of the taxes on the land claimed; the claim may be just as effective even if the taxes were
not paid.[ I] However, some statutory provisions make the payment of taxes on the claimed property an element
of adverse possession.[2]
CUMULATIVE SUPPLEMENT
Cases:
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3 Am. Jur. 2d Adverse Possession § 146
Possessor could not establish statutory adverse possession as to two properties on which possessor paid
taxes for at least 10 years, where the possessor did not pay such taxes in his own name, but in the name of a
former co-tenant of the properties. Bohanon v. Edwards, 970 So. 2d 777 (Ala. Civ. App. 2007).
Statutory bar to an action to recover on claim to land, if the claimant has failed to pay taxes on the land for
twenty years, does not bar a claim of adverse possession when the tracts are contiguous, a relatively small area
is at issue, and the adjacent owners making claims of ownership have paid their respective real estate taxes. Cu-
mulus Broadcasting, Inc. v. Shim, 226 S. W.3d 366 (Tenn. 2007).
lEND OF SUPPLEMENTI
IFNI] Garringer v. Wingard, 585 So. 2d 898 (Ala. 1991); Edwards v. Hardin Properties, Inc., 313 So.
2d 82 (Fla. Dist. Ct. App. 2d Dist. 1975); Stark v. Stanhope, 206 Kan. 428, 480 P.2d 72, 56 A.L.R.3d
1172 (1971); Fredericksen v. Henke, 167 Minn. 356, 209 N.W. 257,46 A.L.R. 785 (1926); Ward v.
Rodriguez, 43 N.M. 191, 88 P.2d 277 (1939); Power v. Kitching, 10 N.D. 254, 86 N.W. 737 (1901);
Krosmico v. Pettit, 1998 OK 90, 968 P.2d 345 (Okla. 1998); Siddons v. Lauterman, 165 Or. 668, 109
P.2d 1049 (1941); Harrelson v. Reaves, 219 S.C. 394, 65 S.E.2d 478,43 A.L.R.2d I (1951); Doenz v.
Garber, 665 P.2d 932 (Wyo. 1983).
[FN2] §§ 148 et seq.
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AMJUR ADVERSE § 146
END OF DOCUMENT
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AMJUR ADVERSE § 147
3 Am. Jur. 2d Adverse Possession § 147
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
I. Payment of Taxes
Topic Summary Correlation Table References
§ 147. As evidence of an adverse claim
West's Key Number Digest
West's Key Number Digest, Adverse Possession €;:;::>89
Page 309 of 665
Page I
In jurisdictions in which payment of taxes is not made an element of adverse possession by statute, the
claimant's payment of taxes on the claimed property is just one of the factors on which acquisition of title by ad-
verse possession is ordinarily founded.[I]I! may be a weighty fact in support of adverse possession,[2] but it is
not of itself sufficient to establish adverse possession.[3]
Although payment of taxes does not generally constitute evidence of possession,[ 4] it is strong evidence of
a claim of title or ownership.[5] Also, payment of taxes, if coupled with other acts, may constitute some evid-
ence of hostile possession.[6]
On the other hand, failure to pay the taxes weakens a claim of ownership and is some evidence that no such
claim was made,[7] but, in the absence of a statute providing otherwise, it is not conclusive.[8]
The assessment and collection of taxes by the taxing officers of a city does not preclude that city from
claiming or having title to the land by prescription based upon adverse possession.[9]
[FNI] Clark v. Dillard, 233 Ark. 760, 346 S.W.2d 684 (1961); Lundy v. Lakin, 96 Cal. App. 2d 221,
215 P.2d 61 (3d Dist. 1950); Nennemann v. Rebuck, 242 Neb. 604, 496 N.W.2d 467 (1993); Turner v.
Sanchez, 50 N.M. 15, 168 P.2d 96, 164 A.L.R. 1280 (1946); Rhodes v. Cahill, 802 S.W.2d 643 (Tex.
1990), reh'g of cause overruled, (Oct. 10, 1990).
[FN2] Geoghegan v. Krauss, 228 Miss. 231, 87 So. 2d461 (1956).
[FN3] Faulks v. Schrider, 114 F.2d 587 (App. D.C. 1940); Crowden v. Grantland, 510 So. 2d 238 (Ala.
1987); Wood v. McCoy, 228 Ark. 880,311 S.W.2d 755 (1958); People v. Ocean Shore R.R., 32 Cal. 2d
406, 196 P.2d 570, 6 A.L.R.2d 1179 (1948); Concord Corp. v. Huff, 144 Colo. 72, 355 P.2d 73 (1960);
Blitch v. Sapp, 142 Fla. 166, 194 So. 328 (1940); Application of Wong, 47 Haw. 472, 391 P.2d 403
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AMJUR ADVERSE § 147
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3 Am. Jur. 2d Adverse Possession § 147
(1964); Alsup v. Stewart, 194111. 595, 62 N.E. 795 (1902); Council Bluffs Say. Bank v. Simmons, 243
N.W.2d 634 (lowa 1976) (taxes paid by record titleholder, with adverse possession adjudged in
claimant); John Widdicomb Co. v. Card, 218 Mich. 72, 187 N.W. 308, 22 A.L.R. 545 (1922); Woodside
v. Durham, 317 Mo. 15,295 S.W. 772, 53 A.L.R. 884 (1927); Consolidated Ice Co. v. City of New
York, 166 N.Y. 92, 59 N.E. 713 (1901); Corbett v. Corbett, 249 N.C. 585, 107 S.E.2d 165 (1959);
Power v. Kitching, 10 N.D. 254, 86 N.W. 737 (1901); Knecht v. Spake, 218 Or. 601, 346 P.2d 98
(1959); Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990), reh'g of cause overruled, (Oct. 10, 1990); Dill-
man v. Foster, 656 P.2d 974 (Utah 1982); Wilson v. Braden, 56 W. Va. 372,49 S.E. 409 (1904).
[FN4] Woodside v. Durham, 317 Mo. 15,295 S.W. 772, 53 A.L.R. 884 (1927); Ray v. Beacon Hudson
Mountain Corp., 88 N.Y.2d 154, 643 N.Y.S.2d 939, 666 N.E.2d 532 (1996); Lawrence v. Pelletier, 154
Vt. 29, 572 A.2d 936 (1990).
[FN5] Walker v. Easterling, 215 Miss. 429, 61 So. 2d 163, 39 A.L.R.2d 348 (1952); Pahler v. Schoen-
hals, 234 S.W.2d 581 (Mo. 1950); Stark v. Akard, 1957 OK 181,313 P.2d 790 (Okla. 1957); Lawrence
v. PeJletier, 154 Vt. 29, 572 A.2d 936 (1990).
[FN6] Deer Island Ass'n v. TroJle, 181 Conn. 201, 435 A.2d 10 (1980); State Nat. Bank and Trust Co.
v. Jacobsen, 218 Neb. 682, 358 N.W.2d 743 (1984); City of New York v. Wilson & Co., 278 N.Y. 86,
15 N.E.2d 408 (1938).
[FN7] Territory v. Pai-a, 34 Haw. 722, 1938 WI. 6825 (1938); Pearson v. City of Guttenberg, 245
N.W.2d 519 (Iowa 1976); Krosmico v. Pettit, 1998 OK 90, 968 P.2d 345 (Okla. 1998); Siddons v. Laut-
erman, 165 Or. 668, 109 P.2d 1049 (1941); Harrelson v. Reaves, 219 S.C. 394, 65 S.E.2d 478, 43
A.L.R.2d I (1951); Rutar Farms & Livestock, Inc. v. Fuss, 651 P.2d 1129 (Wyo. 1982).
[FN8] Krosmico v. Pettit, 1998 OK 90, 968 P.2d 345 (Okla. 1998).
[FN9] City of Deadwood v. Summit, Inc., 2000 SD 29, 607 N.W.2d 22 (S.D. 2000).
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AMJUR ADVERSE § 148
3 Am. Jur. 2d Adverse Possession § 148
American Jurisprudence, Second Edition
Database updated November 20 10
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
I. Payment of Taxes
Topic Summary Correlation Table References
§ 148. Statutory requirements-Compliance, generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=87
A.L.R. Library
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 §§ 3, 13.
Forms
Page 311 of 665
Page I
Instruction to jury-Elements of adverse possession-Payment of taxes. I BAm. Jur. Pleading and Practice
Forms, Adverse Possession §§ 145 to 148.
Under some state statutes, payment of taxes by an adverse claimant is a requisite to establishing title by ad-
verse possession.[1] In those jurisdictions, the statutory requirements must be met,[2] or title by adverse posses-
sion cannot be established.[3] Payment of taxes need not be shown, however, if no taxes had been levied or as-
sessed against the property.[4]
The payment of taxes based on an illegal or void assessment does not constitute compliance by an adverse
claimant with a statute requiring the payment of all taxes legally assessed as a condition of adverse possession.[5]
It has been held that neither the purchase of land at a tax sale nor the redemption of land rrom a tax sale or-
dinarily constitutes a payment of taxes within the purview of the statutes.[6] However, it has also been held that
an adverse claimant's payment of back real estate taxes by redemption qualifies as payment for the purposes of
adverse possession.[7]
[FNI] Harper v. Smith, 582 So. 2d 1089 (Ala. 1991) (for statutory adverse possession, which has a
shorter time requirement); Quality Plastics, Inc. v. Moore, 131 Ariz. 238, 640 P.2d 169 (1981); Clark v.
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3 Am. Jur. 2d Adverse Possession § 148
Dillard, 233 Ark. 760, 346 S.W.2d 684 (1961); Ernie v. Trinity Lutheran Church, 51 Cal. 2d 702, 336
P.2d 525 (1959); Seddon v. Harpster, 403 So. 2d 409 (Fla. 1981); Baxter v. Craney, 135 Idaho 166, 16
P.3d 263 (2000); Solomon's Rock Trust v. Davis, 675 A.2d 506 (Me. 1996); Tester v. Tester, 300 Mont.
5, 3 P.3d 109 (2000); Potts v. Vokits, 101 Nev. 90, 692 P.2d 1304 (1985); Williams v. Howell, 108
N.M. 225, 770 P.2d 870 (1989); Madsen v. Clegg, 639 P.2d 726 (Utah 1981).
[FN2) McKinnon v. Commerford, 88 So. 2d 753 (Fla. 1956); Uphoff v. Trustees of Tufts College, 351
Ill. 146, 184 N.E. 213, 93 A.L.R. 1224 (1932); Fredericksen v. Henke, 167 Minn. 356, 209 N.W. 257,
46 A.L.R. 785 (1926); Zubieta v. Tamer, 76 Nev. 243, 351 P.2d 982 (1960); Judd v. Meoska, 76 S.D.
537,82 N.W.2d 283 (1957); Murphy v. Redeker, 16 S.D. 615, 94 N.W. 697 (1903). See also Gibbs v.
Lester, 41 S.W.2d 28, 80 A.L.R. 431 (Tex. Comm'n App. 1931); Tripp v. Bagley, 74 Utah 57, 276 P.
912,69 A.L.R. 1417 (1928).
[FN3) Hill v. Cape Coral Bank, 402 So. 2d 945 (Ala. 1981); Tobin v. Stevens, 204 Cal. App. 3d 945,
251 Cal. Rptr. 587 (1st Dist. 1988); Herrmann v. Woodell, 107 Idaho 916, 693 P.2d 1118 (Ct. App.
1985); Tester v. Tester, 300 Mont. 5, 3 P.3d 109 (2000); Tripp v. Bagley, 74 Utah 57, 276 P. 912, 69
A.L.R. 1417 (1928).
The right to assert the acquisition of an interest in realty by adverse possession was precluded by failure
to comply with statutory requisites as to the adverse claimant's return of the property to the county as-
sessor for taxation and subsequent payment of all taxes, even though the statute had been repealed, be-
cause the statute was in effect during a portion of the period relied on by the adverse claimant. Indian
Rocks Beach South Shore v. Ewell, 59 So. 2d 647,32 A.L.R.2d 940 (Fla. 1952).
[FN4) Owen v. Boydstun, 102 Idaho 31, 624 P.2d 413 (1981).
[FN5) Illinois Cent. R. Co. v. Cavins, 238 Ill. 380, 87 N.E. 371 (1909); Grays Harbor Commercial Co.
v. McCulloch, 113 Wash. 203, 193 P. 709 (1920).
[FN6) Aggelos v. Zelia Mining Co., 99 Utah 417,107 P.2d 170, 132 A.L.R. 213 (1940).
As to the time or period of payment, generally, see § 151.
[FN7) Tungsten Holdings, Inc. v. Parker, 2001 MT 117, 305 Mont. 329, 27 P.3d 429 (200 I).
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AMJUR ADVERSE § 149
3 Am. Jur. 2d Adverse Possession § 149
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
II. Elements and Requisites
I. Payment of Taxes
Topic Summary Correlation Table References
Page 313 of 665
Page I
§ 149. Statutory requirements-Payment on particular land; effect of insufficient or inaccurate descrip- tion
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>87, 90
A.L.R. Library
Presumptions and evidence respecting identification of land on which property taxes were paid to establish
adverse possession, 36 A.L.R. 4th 843.
It is essential to the efficacy of payment of taxes as a compliance with a statute making such payment a re-
quisite to establishing title by adverse possession that the payment be made on the particular land claimed ad-
versely.[I] There must be a payment of the taxes as to all of the land claimed and described in the deed or other
instrument giving color of title to comply with the statute requiring the payment of the taxes as a condition of
adverse possession.[2]
Practice Guide:
If a person both owns land by deed and claims land by adverse possession, there is a presumption that taxes paid
by that person were paid on the land that the individual owned by deed, rather than the land that he or she claims
by adverse possession.[3]
If the taxes as to the particular land claimed adversely are actually paid, the fact that the land has not been
accurately described in the assessment or in the tax receipts will not affect the efficacy of the payment as a com-
pliance with the statute.[4] Even if the descriptions on the tax receipts are insufficient by themselves to identify
the property, as far as the requirements of adverse possession are concerned, the claimant may show by other
evidence that the particular land occupied was assessed and that the taxes were paid by the claimant or prede-
cessors of the claimant.[5]
If taxes are assessed by government survey designation rather than by metes and bounds, a statutory require-
ment for the payment of taxes may be met by the claimant's payment of taxes on a lot included within the sur-
vey.[6]
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[FNI] Seddon v. Harpster, 403 So. 2d 409 (Fla. 1981); Herrmann v. Woodell, 107 Idaho 916, 693 P.2d
1118 (Ct. App. 1985).
The claimants of a parcel bordered to the west by a state highway and to the east by a county road did
not establish that they had paid taxes on the parcel, as an element of the adverse possession claim, be-
cause the legal descriptions in county assessments were not clear as to whether the claimants or the ad-
joining landowner had paid the taxes, and the office supervisor of the county assessment office could
say only that the claimants were "paying taxes on the property that's east of that road, whatever that
road is." Tester v. Tester, 300 Mont. 5, 3 P.3d 109 (2000).
[FN2] Weston v. Hilliard, 232 Ark. 535, 338 S.W.2d 926 (1960); Hoencke v. Lomax, 102 Tex. 487, 119
S. W. 842 (1909).
A claimant to land by adverse possession could not claim that the payment of taxes on his land was at-
tributable to the claimed land because his deed described 42 acres, but he paid taxes on only 40 acres.
Croft v. Sanders, 283 S.C. 507, 323 S.E.2d 791 (Ct. App. 1984).
[FN3] Welch v. Mathews, 642 S.W.2d 829, 36 A.L.R.4th 835 (Tex. App. Tyler 1982).
[FN4] Sorensen v. Costa, 32 Cal. 2d 453,196 P.2d 900 (1948); Griswold v. Comer, 161 S.W. 423 (Tex.
Civ. App. Galveston 1913), writ granted, (Oct. 15, 1914) and modified on other grounds, 209 S.W. 139
(Tex. Comm'n App. 1919).
The statutory requirement of payment of taxes for five consecutive years, as a prerequisite to a claim of
ownership to a disputed boundary strip that had been improved by the plaintiff, was satisfied because
the tax assessor testified that the taxes were levied on the assumption that the area occupied, including
the disputed strip, was equivalent in amount and extent to the land taxed. Flynn v. Allison, 97 Idaho
618,549 P.2d 1065 (1976).
[FN5] Sorensen v. Costa, 32 Cal. 2d 453,196 P.2d 900 (1948).
[FN6] Scott v. Gubler, 95 Idaho 441, 511 P.2d 258 (1973).
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AMJUR ADVERSE § 150
3 Am. Jur. 2d Adverse Possession § 150
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
11. Elements and Requisites
l. Payment of Taxes
Topic Summary Correlation Table References
Page 315 of 665
Page I
§ 150. Statutory requirements-Payment by or on behalf of claimant or by both claimant and record own- er
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=92
A.L.R. Library
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353 § II.
As a general rule, the payment of taxes required by statute as a condition to establishing title to land by ad-
verse possession may be made either by the adverse claimant or by a third person or agent on behalf of the
claimant.[ I] This is true even if the agent pays the taxes in the agent's name, if it is shown to be for the adverse
c1aimant.[2] Thus, an adverse claimant may show that taxes paid in another's name, as indicated on tax receipts,
were in fact paid on behalf of the claimant.[3] Payment of taxes by persons in privity with the adverse claimant[
4]-such as a predecessor in interest[5] or a beneficiary[6]-are also generally deemed to be payments inuring
to the benefit of the adverse claimant.
It has been held that payment of taxes as to the land in question by both the owner and the adverse claimant
does not preclude the latter from obtaining the benefit of the payment of taxes.[7] However, it has also been held
that if there has been a double payment of taxes, or payment by the record owner and payment or offer of pay-
ment by one claiming adversely, the one who paid the taxes first prevails.[8]
Once a person has gained title to land by adverse possession by payment of the taxes and fulfillment of the
statutory conditions, a payment of the taxes by the record owner or some other claiming ownership of the land
does not affect the title, even if the owner by adverse possession has not paid the subsequent taxes. [9]
[FN I] Cooper v. Carter Oil Co., 7 Utah 2d 9, 316 P.2d 320 (1957).
[FN2] Cooper v. Carter Oil Co., 7 Utah 2d 9, 316 P.2d 320 (1957).
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3 Am. Jur. 2d Adverse Possession § 150
[FN3] Langley v. Young, 72 Colo. 466, 211 P. 640 (1922); Western Town Lot Co. v. Pettigrew, 40 S.D.
484,168 N.W. 30 (1918).
[FN4] Cooper v. Carter Oil Co., 7 Utah 2d 9,316 P.2d 320 (1957).
[FN5] Comstock v. Finn, 13 Cal. App. 2d 151,56 P.2d 957 (4th Dis!. 1936).
[FN6] Kuhn v. Glos, 257111. 289,100 N.E. 1003 (1913).
[FN7] Pereira Farms Corp. v. Simas, 69 Cal. App. 159, 230 P. 976 (3d Dis!. 1924); Trappett v. Davis,
102 Idaho 527, 633 P.2d 592 (1981); Thomson v. Weisman, 98 Tex. 170,82 S.W. 503 (1904).
[FN8] McCastlain v. Wylie, 139 Ark. 326, 213 S.W. 743 (1919); Cramer v. Walker, 23 Idaho 495, 130
P. 1002 (1913); Parsons v. Anderson, 690 P.2d 535 (Utah 1984).
[FN9] McFarlane v. Morgan, 157 Ark. 97, 248 S.W. 257 (1923); Newsom v. De Ford, 25 Colo. App.
582, 140 P. 207 (1914); Cramer v. Walker, 23 Idaho 495, 130 P. 1002 (1913); Hobson v. Miller, 64
N.M. 215, 326 P.2d 1095 (1958).
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AMJUR ADVERSE § lSI
3 Am. Jur. 2d Adverse Possession § lSI
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
11. Elements and Requisites
1. Payment of Taxes
Topic Summary Correlation Table References
§ 151. Statutory requirements-Time or period of payment
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=93
Page 317 of 665
Page I
Generally, under a statute requiring payment of taxes as an element of adverse possession, a claimant or the
predecessor of a claimant must have paid the taxes for the number of consecutive or successive years comprised
in the statutory period, and the failure to pay the taxes for anyone or more years of the statutory period is fatal.[ I]
The statutory period during which the taxes on the land claimed adversely must be paid to establish title by
adverse possession may be any period of successive years before the commencement of an action trying title,
and need not be immediately preceding the action.[2]
It has been held that the payment of taxes for the consecutive years constituting the prescriptive period at
any time when the taxes are payable during the period is a sufficient compliance with the statute.[3] However, it
has also been held that, to constitute a sufficient payment of taxes, they must be paid annually and in succession
for the full number of years prescribed by the statute, and so that payment at one time for several years is not a
compliance with the statute.[4] It has been held that the claimant must pay the taxes of each year for the period
prescribed before they become delinquent, even under a statute that does not specifically require such prompt
payment.[ 5]
The payment of taxes before the acquisition of color of title or such other interest as may be required by the
particular statute is not a compliance with the statute as a payment of taxes during the period prescribed in order
to establish title by adverse possession.[6] Similarly, the payment of taxes that were past due at the time of issu-
ance of a tax deed under which title by adverse possession is claimed may not be counted as one of the neces-
sary successive payments of taxes during adverse possession in order to establish title by adverse possession.[7]
The payment of taxes after the institution of an action relating to the title of land which is claimed by ad-
verse possession is unavailing to aid as a compliance with the statute requiring payment of taxes as a condition
of adverse possession.[8]
A statute requiring payment of all taxes "which have been legally levied and assessed" to establish adverse
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3 Am. Jur. 2d Adverse Possession § 151
possession does not require the payment of taxes that are not yet due to sustain a claim of adverse possession.[9]
[FNI] Straub v. Capps, 178 Ark. 709, 13 S.W.2d 294 (1928); Glos v. Kingman & Co., 207 Ill. 26, 69
N.E. 632 (1904); Club Land & Cattle Co. v. Wall, 99 Tex. 591, 92 S.W. 984 (1906); Central Pac. Ry.
Co. v. Tarpey, 51 Utah 107, 168 P. 554, I A.L.R. 1319 (1917).
[FN2] Deponte v. Ulupalakua Ranch, Limited, 48 Haw. 17,395 P.2d 273 (1964).
A defendant who claimed title to land by adverse possession and who paid taxes on the land for a period
of 14 years sufficiently complied with the statute providing that the adverse possessor must have occu-
pied and claimed the land for a period of five years continuously and, during such period, paid all taxes
legally levied and assessed on the land. It was immaterial that, following commencement of an action
relating to the title of the land, taxes for the two years immediately preceding the action were paid by
the plaintiffs wife. Brown v. Cartwright, 163 Mont. 139,515 P.2d 684 (1973).
[FN3] Rachels v. Stecher Cooperage Works, 95 Ark. 6, 128 S.W. 348 (1910); Murphy v. Redeker, 16
S.D. 615, 94 N.W. 697 (1903).
[FN4] Brownstin v. Brelle, 193 Wash. 553, 76 P.2d 613 (1938).
[FN5] Houston Oil Co. of Texas v. Niles, 255 S.W. 604 (Tex. Comm'n App. 1923).
[FN6] Goldman v. Sotelo, 8 Ariz. 85, 68 P. 558 (1902); Upham v. Weisshaar, 23 Colo. App. 277, 128
P. 1129 (1912); White v. Harris, 206lll. 584, 69 N.E. 519 (1903).
[FN7] Miller v. Weldon, 26 Colo. App. 108, 140 P. 930 (1914).
[FN8] Etchison v. Dail, 182 Ark. 350, 31 S.W.2d 426 (1930); Empire Ranch & Cattle Co. v. Howell, 22
Colo. App. 389, 125 P. 592 (1912), rev'd on other grounds, 60 Colo. 188, 152 P. 1175 (1915); Club
Land & Cattle Co. v. Wall, 99 Tex. 591, 92 S. W. 984 (1906); Brownstin v. Brelle, 193 Wash. 553, 76
P.2d 613 (1938).
[FN9] Tungsten Holdings, Inc. v. Parker, 2001 MT 117,305 Mont. 329, 27 P.3d 429 (2001).
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AMJUR ADVERSE III A REF
3 Am. Jur. 2d Adverse Possession III A Refs.
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
A. In General; By Whom Title May Be Acquired
Topic Summary Correlation Table
Research References
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=10
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 43 to 46
A.L.R. Index: Adverse Possession
Forms
I BAm. Jur. Pleading and Practice Forms, Adverse Possession §§ 119, 173
Page 319 of665
Page I
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AMJUR ADVERSE § 152
3 Am. Jur. 2d Adverse Possession § 152
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
A. In General; By Whom Title May Be Acquired
Topic Summary Correlation Table References
§ 152. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession €o=lO
Page 320 of 665
Page 1
As a general rule all persons, artificial as well as natural, may acquire title by adverse possession.[l] A
claimant to title by adverse possession must ordinarily have legal capacity to take title.[2]
The conduct of an intentional trespasser, if repeated, might ripen into prescription or adverse possession
and, as a consequence, an individual landowner can lose his or her property rights to a trespasser.[3]
Adverse title may be acquired by ajunior patentee against a senior patentee.[4]
[FN I] Lincoln Parish School Bd. v. Ruston College, 162 So. 2d 419 (La. Ct. App. 2d Cir. 1964).
[FN2] Salem Church of United Brethren in Christ in Baltimore County v. Numsen, 191 Md. 43, 59
A.2d 757, 4 A.L.R.2d 117 (1948).
[FN3] Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 563 N.W.2d 154 (1997).
[FN4] Dishman v. Caylor, 334 S.W.2d 921 (Ky. 1960).
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AMJUR ADVERSE § 153
3 Am. Jur. 2d Adverse Possession § 153
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
A. In General; By Whom Title May Be Acquired
Topic Summary Correlation Table References
§ 153. Infant; ward or incompetent
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>IO
Page 321 of 665
Page I
An infant generally may acquire title by adverse possession.[I] A guardian's possession is deemed the pos-
session of the ward, and is admissible to prove adverse possession by the ward.[2]
An incompetent person may initiate an adverse possession if of sufficient mental capacity to assert a claim
of exclusive ownership,[3] and an adverse possession begun while one is competent will not be destroyed by a
subsequent adjudication of incompetency. [4]
[FNI] Astle v. Card, 52 R.1. 357,161 A. 126 (1932).
As to effect of parent-child relationship, see § 181.
As to adverse possession against an infant, see § 172.
As to capacity of infants, generally, see 42 Am. Jur. 2d, Infants §§ 36 to 44.
[FN2] U. S. Fidelity & Guaranty Co. v. Montgomery, 226 Ala. 298, 146 So. 528 (1933); Department of
Public Welfare, for Use and Ben. of Central State Hospital v. Allen, 255 Ky. 30 1,74 S. W.2d 329 (1934).
As to adverse possession by guardian against ward, see § 179.
As to property of wards, generally, see 39 Am. Jur. 2d, Guardian and Ward §§ 107 to 115.
[FN3] Rachel v. Johnson, 230 Ark. 1003,328 S.W.2d 87 (1959).
As to adverse possession against an incompetent person, see § 173.
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AMJUR ADVERSE § 153 Page 2
3 Am. Jur. 2d Adverse Possession § 153
[FN4] Cathcart v. Matthews, 91 S.C. 464, 74 S.E. 985 (1912).
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AMJUR ADVERSE § 154
3 Am. Jur. 2d Adverse Possession § 154
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
A. In General; By Whom Title May Be Acquired
Topic Summary Correlation Table References
§ 154. Husband and wife
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>IO
Forms
Page 323 of 665
Page I
Answer-Defense-Title by adverse possession-By husband and wife-Payment of taxes. I BAm. Jur.
Pleading and Practice Forms, Adverse Possession § 119.
A husband and wife may acquire title to land jointly by adverse possession.[I] It is possible, at common
law, for a husband and wife to commit an act of disseisin for their joint and mutual benefit.[2]
Where there is substantial evidence that spouses intend that their adverse possession of land would inure to
their joint benefits and not to the sole benefit of one spouse, they acquire the title jointly, but as tenants in com-
mon and not tenants by the entirety.[3] Generally, the possession of either spouse, held because of the marital
rights, and not under an independent title or color of title, will inure to the benefit of the other.[4]
Where spouses possessed property adversely, and before the statutory period expired they separated and
were divorced, and one spouse continued to occupy the property adversely, such spouse could tack the former
joint possession to the continuing possession to make out the statutory period.[5]
[FNl] Preston v. Smith, 41 Tenn. App. 222, 293 S.W.2d 51 (1955).
[FN2] Preston v. Smith, 41 Tenn. App. 222, 293 S.W.2d 51 (1955).
As to adverse possession by one spouse against other spouse, see §§ 182 to 184.
[FN3]41 Am. Jur. 2d, Husband and Wife § 31.
[FN4] Howard v. Turner, 287 Ky. 206, 152 S.W.2d 589 (1941).
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3 Am. Jur. 2d Adverse Possession § 154
[FN5] Humphreys v. Gribble, 227 S.W.2d 235 (Tex. Civ. App. Waco 1950), writ refused n.r.e., (Apr.
19, 1950).
As to tacking of possessions, generally, see §§ 76 et seq.
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AMJUR ADVERSE § 155
3 Am. Jur. 2d Adverse Possession § 155
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
A. In General; By Whom Title May Be Acquired
Topic Summary Correlation Table References
§ 155. Tenant against third person
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=10
Page 325 of 665
Page I
A person that is a tenant may acquire title by adverse possession to adjacent property owned by a third per-
son.[ I] Thus, a tenant is not precluded from setting up adverse possession of adjacent property which the tenant
claims under a deed and which is separated from the landlord's property by a fence.[2]
Observation:
It would seem that where the possession by a tenant of land beyond the boundaries described in a lease does not
inure to the benefit of the landlord it would support a claim by the tenant to such land by adverse possession.[3]
[FNI] Everett v. Culberson, 215 Ga. 577, III S.E.2d 367 (1959).
[FN2] Everett v. Culberson, 215 Ga. 577, III S.E.2d 367 (1959).
As to adverse possession of tenant against landlord, see §§ 197 to 200.
[FN3] Everett v. Culberson, 215 Ga. 577, III S.E.2d 367 (1959).
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AMJUR ADVERSE § 156
3 Am. Jur. 2d Adverse Possession § 156
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
A. In General; By Whom Title May Be Acquired
Topic Summary Correlation Table References
§ 156. Cotenant against third person
West's Key Number Digest
West's Key Number Digest, Adverse Possession <C=IO
Page 326 of 665
Page I
The possession of one cotenant is presumptively the possession of all and inures to the benefit of all.[I]
Where one acquires an outstanding adversary title, the acquisition inures to the benefit of a cotenant.[2] Thus, if
one cotenant in possession of a jointly owned tract of land occupies and claims as part of that tract an adjoining
parcel, adverse possession of the parcel must be deemed to be that of all cotenants, and therefore adverse posses-
sion of such adjoining parcel for the statutory period will be effective to vest the title thereto in all cotenants.[3]
The possession of property by one cotenant under a color of title held by all cotenants inures to the benefit of all
so as to ripen title in each according to the interest ofeach.[4]
[FNI] Mack v. Linge, 254 Iowa 963, 119 N.W.2d 897 (1963); Poenisch v. Quarnstrom, 361 S.W.2d 367
(Tex. 1962).
[FN2]20 Am. Jur. 2d, Cotenancy and Joint Ownership §§ 76 to 89.
As to adverse possession by one cotenant against other cotenants, see §§ 201 to 213.
As to adverse possession by a third person against cotenants, see §§ 214 to 223.
[FN3] Big Run Coal & Clay Co. v. Helton, 323 S.W.2d 855 (Ky. 1959).
[FN4] Herron v. Swarts, 1960 OK 53, 350 P.2d 314 (Okla. 1960).
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3 Am. Jur. 2d Adverse Possession § 156
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AMJUR ADVERSE § 157
3 Am. Jur. 2d Adverse Possession § 157
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
A. In General; By Whom Title May Be Acquired
Topic Summary Correlation Table References
§ 157. Corporation
West's Key Number Digest
West's Key Number Digest, Adverse Possession tC=1O
Forms
Page 328 of 665
Page 1
Complaint, petition, or declaration-By corporation-Under conveyance-Payment of taxes. 1 BAm. Jur.
Pleading and Practice Forms, Adverse Possession § 173.
A private corporation may acquire title by adverse possession in the same manner and to the same extent as
an individual.[l] An incorporated railroad company is within the general rule and may acquire title by adverse
possession for the requisite period of time of land occupied by it and used for the purpose of conducting its
transportation business, although generally a railroad company acquires by adverse possession only an easement
in a right of way.[2] Where a corporation possessing the power of eminent domain originally took title as a pur-
chaser under a deed containing words purporting to convey the fee and, from the beginning, exercised acts of
dominion over the land tending to show absolute ownership, there was no room for the presumption that the cor-
poration entered or continued to hold under its power of eminent domain, and such corporation could acquire
title by adverse possession.[3]
[FNl] Seaboard Air Line R. Co. v. California Chemical Co., 210 So. 2d 757 (Fla. Dis!. C!. App. 4th
Dist. 1968); Todd v. Kitsap County, 101 Wash. 2d 245,676 P.2d 484 (1984).
[FN2] 65 Am. Jur. 2d, Railroads §§ 55, 74, 103.
As to acquisition of title against a railroad by adverse possession, see §§ 276,277.
[FN3] Ontelaunee Orchards v. Rothermel, 139 Pa. Super. 44,11 A.2d 543 (1940).
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AMJUR ADVERSE § 157 Page 2
3 Am. Jur. 2d Adverse Possession § 157
AMJUR ADVERSE § 157
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AMJUR ADVERSE § 158
3 Am. Jur. 2d Adverse Possession § 158
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
A. In General; By Whom Title May Be Acquired
Topic Summary Correlation Table References
§ 158. Corporation-Foreign corporation
West's Key Number Digest
West's Key Number Digest, Adverse Possession C= I 0
Page 330 of 665
Page I
Although the cases are not in accord on the right of a foreign corporation to acquire title by adverse posses-
sion, it would seem that in any jurisdiction where the local laws permit foreign corporations to take and hold
title to land, such corporation may acquire title by adverse possession. [I] Of course, where the view is taken that
a foreign corporation cannot invoke the benefit of the applicable statute of limitations[2] it is denied the right to
acquire title by adverse possession to lands.[3] In jurisdictions where the rule prevails that a foreign corporation
is permanently absent from the state, it may be denied the benefit of a statute of limitations governing actions for
the possession of real property, provided a "saving clause" tolling the statute as to nonresidents is construed as
applicable to such actions.[4] Of course, if the "saving clause" is construed as not embracing nonresidents, a for-
eign or alien corporation does not fall within its terms, and in such cases, the corporation may have the benefit
of the statute of limitations and claim land the statute by adverse possession.[5]
Observation:
While this would be the holding irrespective of the view taken as to the presence or absence of the foreign cor-
poration, it is expressly supported for the additional reason that the agent or tenant of the foreign corporation
who has had possession during the limitation period could at any time have been brought into court and the
agent's right to possession determined without regard to the question whether the property was held by a repres-
entative or principa1.[6] Moreover, there is express authority for the view that a statute limiting the time within
which an action for the recovery of land may be brought is applicable to a foreign corporation unless it appears
that it could not have been served with process within the jurisdiction of the court.[7]
[FN1] Humphreys v. Idaho Gold Mines Development Co., 21 Idaho 126, 120 P. 823 (1912); Scottish
Am. Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666 (1911).
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Page 331 of 665
AMJUR ADVERSE § 158 Page 2
3 Am. Jur. 2d Adverse Possession § 158
[FN2] 36 Am. Jur. 2d, Foreign Corporations § 246.
[FN3] Robinson v. Imperial Silver Min. Co., 5 Nev. 44, 1869 WL 2384 (1869) (overruled in part on
other grounds by, Simmons v. Trivelpiece, 98 Nev. 167,643 P.2d 1219 (1982)).
[FN4] Union Consolidated Silver Mining Co. v. Taylor, 100 U.S. 37, 25 L. Ed. 541 (1879) (bound by
construction of Nevada statutes).
[FN5] Scortish Am. Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666 (1911).
[FN6] Scottish Am. Mortg. Co. v. Butler, 99 Miss. 56, 54 So. 666 (1911).
[FN7] Walker v. L. E. Meyers Cons!. Co., 1935 OK 965, 175 Okla. 548, 53 P.2d 547 (1935).
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AMJUR ADVERSE § 159
3 Am. JUL 2d Adverse Possession § 159
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
A. In General; By Whom Title May Be Acquired
Topic Summary Correlation Table References
§ 159. Religious corporation or society
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=IO
A.L.R. Library
Adverse possession by religious society, 4 A.L.R. 2d 123 §§ 2, 3.
Page 332 of 665
Page 1
There is no distinction between a religious corporation and an individual in regard to the capacity to acquire
title by adverse possession.[l] Consequently, a religious corporation can acquire title by adverse possession.[2]
A church may generally acquire title by adverse possession[3] and religious groups may acquire property by
adverse possession by using it in the same way that such property is ordinarily used by a church.[4]
Observation:
Primarily, it is the acts of the adverse claimant to which the court must look to determine objectively whether
there is a claim of right to the disputed area openly and exclusively, and particularly is this true where the intent
in question is that of an incorporated entity, such as a church, so that a trial court is not bound by the intent of an
individual member, but instead must discern the intent of the entity as evidenced by the acts of the body as a
whole.[5]
The trustees or deacons of a religious society or church may acquire title to property by adverse possession,[
6] and hence church trustees, like other persons, under a deed as color of title, may acquire good title to land by
adverse possession.[7] There is, however, authority for the view that the trustees of an unincorporated religious
society which could not itself acquire title by adverse possession cannot acquire such title.[8] Although an unin-
corporated religious society cannot acquire property, the individuals who compose such society may acquire title
by adverse possession which, on the incorporation of the society, inures to its benefit.[9]
[FN 1] Shepherd v. Scott's Chapel, A.M.E. Zion Church, 216 Ala. 193, 112 So. 905 (1927).
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AMJUR ADVERSE § 159 Page 2
3 Am. Jur. 2d Adverse Possession § 159
[FN2] Robertson v. Fincher, 348 So. 2d 466 (Ala. 1977).
[FN3] Burton v. Griffith, 226 Ark. 641, 291 S.W.2d 516 (1956).
An incorporated church that exercised general control over property which had been conveyed to its un-
incorporated predecessor church for use of ministers acquired good title to property by adverse posses-
sion. Presbyterian Church of James Island v. Pendarvis, 227 S.c. 50, 86 S.E.2d 740 (1955).
[FN4] O. K. C. Corp. v. Allen, 574 S.W.2d 809 (Tex. Civ. App. Texarkana 1978), writ refused n.r.e.,
(May 30, 1979).
[FN5] Robertson v. Fincher, 348 So. 2d 466 (Ala. 1977).
[FN6] Bridges v. Henson, 216 Ga. 423,116 S.E.2d 570 (1960) (trustees).
[FN7] Deepwater Ry. Co. v. Honaker, 66 W. Va. 136,66 S.E. 104 (1909).
[FN8] Salem Church of United Brethren in Christ in Baltimore County v. Numsen, 191 Md. 43, 59
A.2d 757, 4 A.L.R.2d 117 (1948).
[FN9] Refonned Church of Gallupville v. Schoolcraft, 65 N.Y. 134, 1875 WL 10945 (1875).
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3 Am. Jur. 2d Adverse Possession § 160
American Jurisprudence, Second Edition
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Adverse Possession
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III. By and Against Whom Title May Be Acquired
A. In General; By Whom Title May Be Acquired
Topic Summary Correlation Table References
§ 160, Cemetery authority or association
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=> I 0
A.L.R. Library
Page 334 of 665
Page I
Acquisition of title to ground through adverse possession by cemetery or graveyard authorities, 41 A.L.R.
2d 925.
It is generally held that cemetery authorities or associations, otherwise entitled to hold legal title to property
to be used for burial purposes, may acquire such property by adverse possession,[I] even as to land not yet used
as burial plots.[2] However, the contention that a cemetery association incorporated by the owners of a group of
plots previously used for burial purposes had acquired adverse title, as against the owners of the various plots, to
land included within a fence erected by the association, has been rejected.[3]
[FNI] Kuhn v. Gabriel Cemetery Ass'n, 202 So. 2d 634 (Miss. 1967); c. L. Gray Lumber Co. v. Pick-
ard, 220 Miss. 419, 71 So. 2d 211, 41 A.L.R.2d 920 (1954).
As to adverse possession of cemeteries and lots therein, see § 266.
[FN2] Berrey v. Jean, 401 N.E.2d 102 (Ind. C!. App. 1st Dis!. 1980).
[FN3] Rathbunville Union Cemetery Ass'n v. Betson, 208 N.Y. 364,101 N.E. 892 (1913).
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3 Am. Jur. 2d Adverse Possession § 161
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
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Ill. By and Against Whom Title May Be Acquired
A. In General; By Whom Title May Be Acquired
Topic Summary Correlation Table References
§ 161. Members orthe public
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=1O
A.L.R. Library
Page 335 of 665
Page 1
Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.
3d 678 §§ 3, 9.
The public may obtain title by adverse possession to that which it has occupied during the full statutory
period.[l] However, the acquisition of such title would have to be through a public or governmental entity rather
than the unorganized public.[2]
Caution:
However, the occupancy or use by the public of one portion of a road does not avail it in its claim to another
portion not occupied by it.[3]
[FNl] Ogle v. Hodge, 217 Ark. 913, 234 S.W.2d 24 (1950); Lincoln Parish School Bd. v. Ruston Col-
lege, 162 So. 2d 419 (La. Ct. App. 2d Cir. 1964).
[FN2] Morgan v. McLoughlin, 6 Misc. 2d 434, 163 N.Y.S.2d 51 (Sup 1957), judgment affd, 6 A.D.2d
704, 174 N.Y.S.2d 890 (2d Dep't 1958), judgment affd, 5 N.Y.2d 1041, 185 N.Y.S.2d 801, 158 N.E.2d
498 (1959).
As to acquisition by governmental entities, see §§ 162 et seq.
[FN3] Descheemaeker v. Anderson, 131 Mont. 322, 310 P.2d 587, 63 A.L.R.2d 1153 (1957).
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3 Am. Jur. 2d Adverse Possession § 161
rights reserved.
AMJUR ADVERSE § 161
END OF DOCUMENT
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AMJUR ADVERSE § 162
3 Am, JUL 2d Adverse Possession § 162
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
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111. By and Against Whom Title May Be Acquired
A. In General; By Whom Title May Be Acquired
Topic Summary Correlation Table References
§ 162, Governmental entity
West's Key Number Digest
West's Key Number Digest, Adverse Possession €= 10
A,L,R, Library
Page 337 of665
Page I
Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.
3d 678 §§ 4, 5, 9, lOe.
Title by adverse possession may be acquired by the United States,[I] or by a state,[2] county,[3] city,[4] or
other governmental entity.[5]
Practice Guide:
It has been stated that the test used to determine whether a local government has acquired property by adverse
possession is clearly not the same test as that used to determine whether a party has acquired government prop-
erty by virtue of the government's abandonment of the same.[6]
A governmental entity must show all facts that must be shown by an individual to establish title by adverse
possession.[7]
Illustration:
A state levee board of commissioners did not acquire rights in land adjacent to a levee by prescription where the
levy board in the county in question did not have the statutory power to acquire title to the land and therefore
could not acquire fee title to the land by adverse possession, and where the levee board continually recognized
that the property owner held title to the land and that the owner was liable for taxes on the land, and where the
levee board recognized that if its easement to maintain the levee ceased to exist, the board's interest in the adja-
cent land would revert to the owner.[8]
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Page 338 of 665
AMJUR ADVERSE § 162 Page 2
3 Am. Jur. 2d Adverse Possession § 162
[FNI] Stanley v. Schwalby, 147 U.S. 508,13 S. Ct. 418, 37 L. Ed. 259 (1893).
The United States had acquired good title by adverse possession to an 80-acre tract of land in a national
forest in Utah, where from at least 1937 until 1955 only the United States and a predecessor who con-
veyed to it acted as owners of the property. U.S. v. Stubbs, 776 F.2d 1472 (lOth Cir. 1985) (applying
Utah law).
[FN2] State ex reI. R.T.G., Inc. v. State, 141 Ohio App. 3d 784, 753 N.E.2d 869 (10th Dist. Franklin
County 2001); Coos County v. State, 303 Or. 173,734 P.2d 1348 (1987).
[FN3] § 163.
[FN4] § 164.
[FN5] Williams v. North Carolina State Bd. of Ed., 266 N.C. 761,147 S.E.2d 381 (1966).
As to acquisition of title by adverse possession of public property, see §§ 268 et seq.
[FN6] Heise v. Village of Pewaukee, 92 Wis. 2d 333, 285 N.W.2d 859 (1979).
[FN7] Ostrander v. Bell, 199 A.D. 304, 192 N.Y.S. 262 (3d Dep't 1921), affd, 234 N.Y. 566, 138 N.E.
449 (1922);
For cases in which governmental entity's claim for adverse possession was defeated, see Ault v. State,
688 P.2d 951 (Alaska 1984). Application of Karnakana, 58 Haw. 632, 574 P.2d 1346 (1978); Rector v.
Missouri Dept. of Natural Resources, 685 S.W.2d 225 (Mo. Ct. App. E.D. 1984).
[FN8] McDonald v. Board of Mississippi Levee Com'rs, 646 F. Supp. 449 (N.D. Miss. 1986), judgment
afrd, 832 F.2d 901 (5th Cir. 1987) (applying Mississippi law).
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3 Am. Jur. 2d Adverse Possession § 163
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Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
A. In Geneml; By Whom Title May Be Acquired
Topic Summary Correlation Table References
§ 163. Governmental entity-Counly; possession under lax deed
Wesl's Key Number Digesl
West's Key Number Digest, Adverse Possession (:=10
A. L.R. Library
Page 339 of 665
Page I
Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.
3d 678 § 6.
It is the general rule that a county may acquire title to land by adverse possession.[I] However, the posses-
sion of land by a county under a tax deed is not adverse to the former owner while the latter's right of redemp-
tion exists.[2] Thus, where a former owner's right of redemption was never cut off, because of a defective notice
of the expiration of the period of redemption, the county's possession under its tax deed was not adverse to the
former owner even though it ran for many years beyond the normal period ofredemption.[3]
[FN I]ltawamba County v. Sheffield, 195 Miss. 359, 13 So. 2d 649 (1943).
[FN2] Accola v. Miller, 76 N.W.2d 517 (N.D. 1956).
[FN3] McGee v. Stokes' Heirs at Law, 76 N.W.2d 145 (N.D. 1956).
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3 Am. Jur. 2d Adverse Possession § 164
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, lD., and Eric Surette, J.D.
lll. By and Against Whom Title May Be Acquired
A. In General; By Whom Title May Be Acquired
Topic Summary Correlation Table References
§ 164. Governmental entity-Town or city
West's Key Number Digest
West's Key Number Digest, Adverse Possession €o=IO
A.L.R. Library
Page 340 of 665
Page I
Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.
3d 678 § 8.
Public entities, including municipalities, may acquire land by adverse possession.[I] A municipal corpora-
tion is not deprived of the benefit of continuous adverse possession of land because of the public character of its
corporate franchise, and it may acquire title by adverse possession the same as an individual.[2] There is,
however, some authority for the view that a municipality cannot acquire title by prescription or adverse posses-
sion, particularly due to its right to acquire land by the exercise of the power of eminent domain.[3]In one state
political subdivisions of the state cannot acquire property through acquisitive prescription, as to allow such
would be in conflict with a provision of the state constitution.[4]
[FNI]In re.88 Acres of Property, 165 VI. 17,676 A.2d 778 (1996).
[FN2] City of Raleigh v. Durfey, 163 N.C. 154,79 S.E. 434 (1913).
[FN3] Sayre Land Co. v. Borough of Sayre, 384 Pa. 534,121 A.2d 579 (1956).
[FN4] Parish of Jefferson v. Bonnabel Properties, Inc., 620 So. 2d 1168 (La. 1993).
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3 Am. Jur. 2d Adverse Possession § 164
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3 Am. Jur. 2d Adverse Possession § 165
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
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III. By and Against Whom Title May Be Acquired
A. In General; By Whom Title May Be Acquired
Topic Summary Correlation Table References
§ 165. Governmental entity-School district
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=> 10
A.L.R. Library
Page 342 of 665
Page 1
Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.
3d 678 § 7.
A school district is a body corporate and can acquire title to land by adverse possession.[l]
A school district is not restricted to the acquisition of an easement by adverse use, but may acquire the full
title by adverse possession.[2] The test of adverse use by a school district is its manifest intention initially and
subsequently to hold the property in nonrecognition of those against whom it is claimed.[3] While the character
and quality of the use of land by a school district are naturally not of the same type and character that individu-
als might normally make of land, where it is the character of dominion and use normally exercised and made of
property by a school district, it will suffice to support a claim of title by adverse possession in the school dis-
trict.[ 4]
In the absence of a license or an agreement granting the right of occupancy, the placing of a school building
and other necessary appendages on the land of another, building a fence around it and conducting school and so-
cial functions thereon, is evidence of adverse and hostile possession under which title may be claimed after the
lapse of the statutory period.[5] A school district that enters into possession of land under a purported condem-
nation proceeding designed to vest it with fee simple title, and that openly uses and occupies the land as a public
school site adversely and continuously for the statutory period under a bona fide claim of ownership, becomes
vested with the complete fee simple title.[6]
[FNl] Lincoln Parish School Bd. v. Ruston College, 162 So. 2d 419 (La. Ct. App. 2d Cir. 1964); Harris
v. Consolidated School Dist. No.8 C, Dunklin County, 328 S.W.2d 646 (Mo. 1959).
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AMJUR ADVERSE § 165 Page 2
3 Am. Jur. 2d Adverse Possession § 165
[FN2] Feeler v. Reorganized School Dis!. No.4 of Lincoln County, 290 S.W.2d 102 (Mo. 1956).
[FN3] La Grange Reorganized School Dis!. No. R-VI v. Smith, 312 S.W.2d 135 (Mo. 1958).
[FN4] La Grange Reorganized School Dist. No. R-VI v. Smith, 312 S.W.2d 135 (Mo. 1958).
[FN5] Jeffers v. Edge, 1956 OK 109,295 P.2d 787 (Okla. 1956).
[FN6] Meinders v. Board of Ed. of Wynnewood School Dis!. 1-38, 1959 OK 161, 344 P.2d 572 (Okla.
1959).
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3 Am. Jur. 2d Adverse Possession III B Refs.
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
B. Against Whom Title May Be Acquired
Topic Summaty Correlation Table
Research References
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=4
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 46.5. 47
A.LR. Index: Adverse Possession
Forms
IB Am. Jur. Pleading and Practice Forms, Adverse Possession §§ 175, 180
Page 344 of 665
Page I
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III. By and Against Whom Title May Be Acquired
B. Against Whom Title May Be Acquired
I. In General
Topic Summary Correlation Table References
§ 166. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=4
Forms
Page 345 of 665
Page I
Complaint, petition, or declaration-Against corporation-Claim of right-Possession by enclos-
ure-Fenced property not described in original deed. I BAm. Jur. Pleading and Practice Forms, Adverse Posses-
sion § 175.
As a general rule, title by adverse possession may be acquired against all persons who are not excepted from
the operation of the statute of limitations, even though they did not know, or claim, that they had title to the
property involved.[I] However, the possession of real property cannot ordinarily be considered as adverse as to
one who, during its continuation, did not have a right of entry,[2] as, for instance, a remaindennan or reversion-
er.[3] The presumption of a grant from an adverse possession for the statutory period arises only where the per-
son against whom the right is claimed could have lawfully interrupted or prevented the exercise of the subject of
the supposed grant.[4]
Statutory protection from adverse possession may be afforded to lands that have a pious, charitable, or pub-
lic use.[5]
[FNI] Waterman Hall v. Waterman, 220 III. 569, 77 N.E. 142 (1906).
As to legal control of property held in hostility to absentee owner, see 1 Am. Jur. 2d, Absentees § II.
[FN2] Pahler v. Schoenhals, 234 S. W.2d 581 (Mo. 1950).
[FN3] § 232.
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Page 346 of 665
AMJUR ADVERSE § 166 Page 2
3 Am. Jur. 2d Adverse Possession § 166
[FN4] Greenbaum v. Harrison, 132 Md. 34,103 A. 84 (1918).
As to presumption of grant, see § 7.
[FN5] Empire Dis!. Elec. Co. v. Gaar, 26 S.W.3d 370 (Mo. C!. App. S.D. 2000).
As to adverse possession by religious organizations, see § 159.
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AMJUR ADVERSE § 166
END OF DOCUMENT
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Westiaw.
AMJUR ADVERSE § 167
3 Am. Jur. 2d Adverse Possession § 167
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
B. Against Whom Title May Be Acquired
1. In General
Topic Summary Correlation Table References
§ 167, Trustee or beneficiary
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>4
Page 347 of665
Page 1
A third person may acquire title to trust property by adverse possession.[l] Thus, the rule is uniformly re-
cognized that title by adverse possession may be acquired to property held in trust, and that if a trustee delays
the assertion of rights until the statute effects a bar against the trustee, the beneficiary will also be barred.[2]
One of the duties of a trustee is to hold the legal title, and it is the trustee's duty, if there is any interference by
anyone with trust lands, to prevent such interference ripening into any rights prejudicial to the beneficiary.[3] If
the trustee fails so to protect the trust estate, and allows intruders adverse possession for the statutory period,
both the trustee and the beneficiary will be barred from asserting any interest in the property.[4] So, where a
third party is in possession, denying that any trust affecting the estate has been created, or asserting that the trust
has been fully performed, or released or discharged, or otherwise does not exist, and claiming adversely to both
the trustee and beneficiary, such possession is adverse; and if al1 those who wou1d have a right to question it ac-
quiesce during the time of limitation, the statute is a bar.[5]
Observation:
A mere ignorance on the part of the beneficiary of the existence of rights in the trust property will not serve to
stop the running of the statute.[6]
The adverse possession of a trust estate has the effect of preventing a recovery of the property by persons
who would otherwise be entitled to the possession at the termination of the trust.[7]
Where a remainder is held in trust, an adverse possession against the trustee wi11 also be effective as against
beneficiaries[8]
[FNl] Presbyterian Church of James Island v. Pendarvis, 227 S.C. 50, 86 S.E.2d 740 (1955).
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AMJUR ADVERSE § 167
3 Am. Jur. 2d Adverse Possession § 167
[FN2] Meeks v. Olpherts, 100 U.S. 564, 25 L. Ed. 735 (1879).
[FN3] Benbow v. Levi, 50 S.C. 120,27 S.E. 655 (1897).
[FN4] Benbow v. Levi, 50 S.C. 120,27 S.E. 655 (1897).
[FN5] Presbyterian Church of James Island v. Pendarvis, 227 S.C. 50, 86 S.E.2d 740 (1955).
[FN6] Waterman Hall v. Waterman, 220 Ill. 569, 77 N.E. 142 (1906).
Page 348 of 665
Page 2
[FN7] Waterman Hall v. Waterman, 220 Ill. 569, 77 N.E. 142 (1906); Huntington Real Estate Co. v.
Megaree, 280 Mo. 41, 217 S.W. 301 (1919).
[FN8] Meeks v. Olpherts, 100 U.S. 564, 25 L. Ed. 735 (1879).
As to adverse possession of remainders, generally, see §§ 232 to 236.
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AMJUR ADVERSE § 167
END OF DOCUMENT
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AMJUR ADVERSE § 168
3 Am. Jur. 2d Adverse Possession § 168
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
B. Against Whom Title May Be Acquired
1. In General
Topic Summary Correlation Table References
§ 168. Mortgagee
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=4
Page 349 of 665
Page I
The view has been taken that adverse possession by a stranger, even though sufficient to bar the owner's
title, does not bar the mortgagee's right thereto.[I] Other cases reach the same result, but with specific reference
to situations where the adverse possession was initiated subsequently to the mortgage.[2]
On the other hand, the view also has been taken that adverse possession that would have barred the owner's
right would also bar the mortgagee's right to the land, and an adverse possessor of mortgaged land is within the
rule that a person who has an interest in the land may set up the fact that a mortgagee's right to foreclose is
barred by the statute of Iimitations.[3] Other cases hold that adverse possession by a stranger, commenced be·
fore the execution of the mortgage and continued for the period requisite to bar the owner, bars the mortgagee's
interest in the land, apparently on the theory that the mortgagee is bound to take notice of any adverse claim be·
ing asserted at the time of the mortgage.[4] Still other courts hold that adverse possession by a stranger is a bar
against the mortgagee only after the expiration of the time within which the mortgagee is allowed to foreclose
the mortgage, plus the period intervening between the execution of the mortgage and the initiation of the adverse
possession.[5]
Adverse possession may be initiated against a mortgagee immediately on the commencement of the posses·
sion, in the absence of actual or constructive knowledge by the adverse claimant of the mortgage.[6] Adverse
possession initiated by a stranger will not be suspended as to the mortgagee by a mere extension of the indebted·
ness or undue delay of foreclosure after the adverse possession commenced.[7]
[FNI] Coe v. Finlayson, 41 Fla. 169,26 So. 704 (1899).
[FN2] Hart v. Lake Josephine Co., 149 Fla. 754, I So. 2d 635 (1941); Broad v. Warnecke, 144 S.W.2d
1005 (Tex. Civ. App. Amarillo 1940), judgment afrd, 138 Tex. 631, 161 S.W.2d 453 (1942).
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Page 350 of 665
AMJUR ADVERSE § 168 Page 2
3 Am. Jur. 2d Adverse Possession § 168
[FN3] Stryker v. Rasch, 57 Wyo. 34, 112 P.2d 570,136 A.L.R. 770 (1941).
[FN4] Drawdy v. Lake Josephine Co., 149 Fla. 756, I So. 2d 631 (1941); Stryker v. Rasch, 57 Wyo. 34,
112 P.2d 570,136 A.L.R. 770 (1941).
[FN5] Stryker v. Rasch, 57 Wyo. 34,112 P.2d 570,136 A.L.R. 770 (1941).
[FN6] Stryker v. Rasch, 57 Wyo. 34,112 P.2d 570,136 A.L.R. 770 (1941).
[FN7] Stryker v. Rasch, 57 Wyo. 34, 112 P.2d 570, 136 A.L.R. 770 (1941).
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AMJUR ADVERSE § 168
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AMJUR ADVERSE § 169
3 Am. Jur. 2d Adverse Possession § 169
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
B. Against Whom Title May Be Acquired
1. In General
Topic Summary Correlation Table References
§ 169. Judgment creditor
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=>4
Page 351 of 665
Page I
Adverse possession may run against a judgment creditor of the title holder to land.[ I] Thus, where a judg-
ment creditor sits by and fails to enforce a judgment while the actual possession of an adverse claimant ripens
into title, the latter has the superior right.[2] It is said that the judgment creditor cannot claim lack of notice of
the adverse possessor's claims, for the actual possession of such adverse claimant was sufficient to put the judg-
ment creditor on notice.[3]
Caution:
The recordation of the judgment during the adverse occupancy does not halt the running of the statute.[4]
[FN 1] Hillsborough Inv. Co. v. Lawyers Trust Co., 148 Fla. 224, 3 So. 2d 870 (1941).
[FN2] Hillsborough Inv. Co. v. Lawyers Trust Co., 148 Fla. 224, 3 So. 2d 870 (1941).
[FN3] Hillsborough Inv. Co. v. Lawyers Trust Co., 148 Fla. 224, 3 So. 2d 870 (1941).
[FN4] Hillsborough Inv. Co. v. Lawyers Trust Co., 148 Fla. 224, 3 So. 2d 870 (1941).
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AMJUR ADVERSE § 169
END OF DOCUMENT
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AMJUR ADVERSE § 170
3 Am. Jur. 2d Adverse Possession § 170
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
B. Against Whom Title May Be Acquired
I. In General
Topic Summary Correlation Table References
§ 170. Railroads
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>4
Page 352 of 665
Page I
In some states title to real estate cannot be acquired from a railroad company by adverse possession,[1 J al-
though sometimes this rule is limited in application to where the property is being used for railroad purposes.[2]
Accordingly, in some states railroad property acquired by private sale and held in fee simple, which has not been
designated for the railroad's line or other railroad operations, is subject to adverse possession.[3] A distinction is
sometimes made between railroad property acquired through a public grant, which is not subject to adverse pos-
session,[4] and railroad property acquired by means ofa private sale, which is subject to adverse possession.[5]
[FN I] Bangor & Aroostook R. Co. v. Daigle, 607 A.2d 533 (Me. 1992); McLaurin v. Winston-Salem
Southbound Ry. Co., 323 N.C. 609, 374 S.E.2d 265 (1988).
[FN2] Boyles v. Missouri Friends of Wabash Trace Nature Trail, Inc., 981 S.W.2d 644 (Mo. Ct. App.
W.D. 1998); Gustin v. Scheele, 250 Neb. 269, 549 N.W.2d 135 (1996).
[FN3] Gustin v. Scheele, 250 Neb. 269, 549 N.W.2d 135 (1996).
[FN4] Read v. Montgomery County, 101 Md. App. 62, 643 A.2d 476 (1994).
[FN5] Meiers v. Wang, 192 Wis. 2d 115,531 N.W.2d 54 (1995).
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AMJUR ADVERSE § 170
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West law,
AMJUR ADVERSE § 171
3 Am. Jur. 2d Adverse Possession § 171
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
B. Against Whom Title May Be Acquired
2. Persons under Disability
Topic Summary Correlation Table References
§ 171. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=4
Forms
Page 353 of665
Page I
Reply-Title not acquired-Plaintiff under disability. IB Am. Jur. Pleading and Practice Forms, Adverse
Possession § 180.
Under the principle that the doctrine of adverse possession is based on the presumption of a grant or con-
veyance,[l) if the person from whom the grant is presumed is under a legal disability to make a grant, there gen-
erally can be no title by adverse possession as against such person.[2) Statutes of limitation, as a rule, exempt
ITom their operation all persons who are under disabilities such as those of infancy, mental incompetency, and
the like, and in such cases an additional time is allowed in which the party may act to recover property after the
removal of the disability.[3) As a general rule, successive disabilities cannot be taken advantage of to prolong
the statute.[4)
Observation:
Regardless of what may seem to be the general rule in these situations, the local laws must be consulted in this
respect, as the question of disabilities as a bar to title by adverse possession is a purely statutory determination.[ 5)
Caution:
In some jurisdictions, it is held that when a joint action is given to several persons the statute will run against all,
even though some of them are under a statutory disability.[6)
[FNI) § 7.
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Page 354 of 665
AMJUR ADVERSE § 171 Page 2
3 Am. Jur. 2d Adverse Possession § 171
[FN2] Braue v. Fleck, 23 N.J. I, 127 A.2d I (1956); Abel v. Abel, 245 Iowa 907, 65 N.W.2d 68 (1954).
[FN3] Braue v. Fleck, 23 N.J. I, 127 A.2d I (1956).
As to acquisition of adverse possession tit1e against an infant, see § 172.
As to acquisition of adverse possession title against an incompetent person, see § 173.
[FN4] De Hatre v. Edmunds, 200 Mo. 246, 98 S.W. 744 (1906) (coverture and mental incompetency).
[FN5] Carney v. Hennessey, 74 Conn. 107,49 A. 910 (1901).
[FN6] Cameron v. Hicks, 141 N.C. 21, 53 S.E. 728 (1906).
As to adverse possession between cotenants, see §§ 20 I to 213.
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AMJUR ADVERSE § 171
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AMJUR ADVERSE § 172
3 Am. Jur. 2d Adverse Possession § 172
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
B. Against Whom Title May Be Acquired
2. Persons under Disability
Topic Summary Correlation Table References
§ 172. Infants
West's Key Number Digest
West's Key Number Digest, Adverse Possession 08=4
Page 355 of 665
Page I
The possession of one claiming title to land by adverse possession, who begins possession at a time when
the owner is an infant, generally cannot be adverse to the owner during the time the latter is under disability, and
the statute generally does not begin to run until after removal of the disability,[I) or, in other words, until the in-
fant reaches majority.[2) Where the marriage of an infant automatically removes the disability of infancy, the
marriage of an infant owner of land held adversely to such owner starts the running of the statute of limitations.[ 3)
Observation:
A record owner who asserts the disability of infancy to defeat a claim of title by adverse possession must show
that the alleged adverse possession began during minority.[4)
Caution:
Under some statutes, an adverse possession that originates during the record owner's infancy will ripen into title
if a possessory action is not brought by the owner within the specified statutory period after attaining majority.[5 )
In some cases the benefits of the disability of infancy may extend to other co-owners of the property.[6)
However, the disability of infancy as to one cotenant will not be extended so as to protect other cotenants.[7)
[FNI) Adams v. Adams, 220 S.C. 131,66 S.E.2d 809 (1951).
As to disability subsequent to the commencement of the running of the statute, see § 174.
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Page 356 of 665
AMJUR ADVERSE § 172 Page 2
3 Am. Jur. 2d Adverse Possession § 172
As to personal disability or incapacity as affecting limitation of actions, generally, see 51 Am. Jur. 2d,
Limitation of Actions §§ 216 to 223.
[FN2] Adams v. Adams, 220 S.c. 131,66 S.E.2d 809 (1951).
As to adverse possession by an infant, see § 153.
As to adverse possession by parent against child or by child against parent, see § 181.
[FN3] Louisiana & T. Lumber Co. v. Lovell, 147 S.W. 366 (Tex. Civ. App. Galveston 1912).
[FN4] Armstrong v. Wilcox, 57 Fla. 30,49 So. 41 (1909).
[FN5] Pearson v. Hasty, 1943 OK 179, 192 Okla. 425,137 P.2d 545,147 A.L.R. 232 (1943).
[FN6] Gilbert v. Hopkins, 204 F. 204 (C.C.A. 4th Cir. 1913).
As to running of statute against a joint cause of action generally, even though some parties plaintiff are
under disability, see § 171.
[FN7] Sibley v. Sibley, 88 S.c. 184,70 S.E. 615 (1911).
The failure of the presumption of a grant is personal to the infant and cannot inure to the benefit of oth-
ertenants in common with the infant. Fore v. Berry, 94 S.C. 71, 78 S.E. 706 (1913).
As to adverse possession against cotenants, see §§ 214 to 223.
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AMJUR ADVERSE § 172
END OF DOCUMENT
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WeStlaw.
AMJUR ADVERSE § 173
3 Am. Jur. 2d Adverse Possession § 173
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
B. Against Whom Title May Be Acquired
2. Persons under Disability
Topic Summary Correlation Table References
§ 173. Mental impairment
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>4
Page 357 of 665
Page I
The possession of one claiming title to land by adverse possession, who begins possession while the owner
is mentally impaired, is not adverse to the owner during the time the latter is under such disability.[I] Time be-
gins to run only after removal of the disability.[2] The same rule applies where there is partial mental incompet-
ency which prevents the afflicted person from understanding rights in regard to the subject matter of the suit.[3]
Caution:
It is important to consult local laws in this connection, inasmuch as such laws may alter general rules, such as
statutory provisions requiring action to be brought by the incompetent within a certain number of years after be-
coming of sound mind.[4]
[FNI] Memmott v. Bosh, 520 P.2d 1342 (Utah 1974).
[FN2] Abel v. Abel, 24510wa 907, 65 N.W.2d 68 (1954).
As to the applicability of local statutes to determine questions regarding disabilities, see § 171.
As to adverse possession by an incompetent person, see § 153.
As to effect of mental impairment on limitation of actions, generally, see 51 Am. Jur. 2d, Limitation of
Actions §§ 229 to 234.
[FN3] Blalock v. Bell, 172 Ga. 313,157 S.E. 696 (1931).
[FN4] § 171.
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Page 358 of 665
AMJUR ADVERSE § 173 Page 2
3 Am. Jur. 2d Adverse Possession § 173
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AMJUR ADVERSE § 173
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Westlaw.
AMJUR ADVERSE § 174
3 Am. Jur. 2d Adverse Possession § 174
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
B. Against Whom Title May Be Acquired
2. Persons under Disability
Topic Summary Correlation Table References
§ 174. Subsequently arising disability
West's Key Number Digest
West's Key Number Digest, Adverse Possession €o=4
Page 359 of 665
Page I
Disability subsequent to the commencement of the running of the statute of limitations, such as the disabil-
ity of infancy, mental incompetency, or coverture, does not interrupt the running of the statute.[1] In the absence
of a statute otherwise providing, it is the general rule that where the statute of limitations has commenced to run
against the right of an owner of real property to sue for its recovery, the running of the statute is not interrupted
by the death of the owner and the casting of the descent of the land on one under disability, or by the fact that
the owner had conveyed the land to one under disability.[2] Thus, where the statute of limitations has begun to
run in favor of one in adverse possession against an owner who dies leaving heirs who are minors, the disability
of infancy does not affect the operation of the statute, since the disability is subsequent to the commencement of
the running of limitations.[3]
[FN I] 51 Am. Jur. 2d, Limitation of Actions § 220.
[FN2] Hogan v. Kurtz, 94 U.S. 773, 24 L. Ed. 317 (1876).
[FN3] Commercial Bank & Trust Co. v. Jordan, 85 Mont. 375, 278 P. 832,65 A.L.R. 968 (1929).
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AMJUR ADVERSE § 174
END OF DOCUMENT
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Westlaw
AMJUR ADVERSE 1Il C REF
3 Am. JUT. 2d Adverse Possession IIJ C Refs.
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
Topic Summary Correlation Table
Research References
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>4, 10
West's Key Number Digest, Husband and Wife €=>16
West's Key Number Digest, Joint Tenancy €=>9, 13
West's Key Number Digest, Judicial Sales €=>32, 61
West's Key Number Digest, Landlord and Tenant €=>14, 16
West's Key Number Digest, Life Estates €=>8
West's Key Number Digest, Mortgages €=>213, 214
West's Key Number Digest, Parent and Child €=>8
West's Key Number Digest, Trusts €=>138, 139.1
A.L.R. Library
A.L.R. Digest: Adverse Possession §§ 5 to 16,46.5
A.L.R. Index: Adverse Possession
Forms
I A Am. JUT. Legal Forms 2d, Adverse Possession §§ 11: I 0, II: 17 to II: 19
IB Am. Jur. Pleading and Practice Forms, Adverse Possession §§ 49,176,181,183
Page 360 of 665
Page I
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AMJUR ADVERSE 111 C REF
END OF DOCUMENT
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AMJUR ADVERSE § 175
3 Am. Jur. 2d Adverse Possession § 175
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., BiII Lindsley. J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
1. In General
Topic Summary Correlation Table References
§ 175. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession tC=4, 10
A.L.R. Library
Page 361 of 665
Page I
Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.
3d 678 § 3.
Under the well-established principle that one cannot hold title adversely to one's self, title cannot be ac-
quired by adverse possession by a person holding land in hostility to him or herself.[I] One who has record title
and, concomitantly also possesses property cannot thereby acquire title to the property by adverse possession, as
the possession of property in an open and continuous manner is a possession and a use of property which is con-
sistent with and incident to ownership by one who has record title to the property.[2] The legal owners of prop-
erty cannot adversely possess it, even after defaulting on a promissory note that is secured by a deed of trust to
the property, as the holder of the note has no automatic right of entry.[3] It is also well settled that where two
tracts of land have a common owner, there can be no adverse possession since an owner cannot prescribe against
himself.[4] It follows that a person holding land in one capacity cannot hold it adversely to him or her self
claiming in another capacity.[5]
One governmental unit may not claim title against another governmental unit on the ground of adverse pos-
session where one is an agency of the other or where both are agencies of the same government, evidently for
the reason that neither can have an interest adverse to the interest of the other in such situations.[6]
[FNI] Pluhar v. Guderjahn, 134 Mont. 46, 328 P.2d 129 (1958).
Adverse possession cannot spring from the use of property owned in fee by the one in possession, as it
relates to the use of property owned by another. Weiss v. Cord Helmer Realty Corp., 140 N.Y.S.2d 95
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AMJUR ADVERSE § 175 Page 2
3 Am. Jur. 2d Adverse Possession § 175
(Sup 1955).
[FN2] DeVita v. Esposito, 13 Conn. App. 101,535 A.2d 364 (1987).
Since the owner of a residential condominium unit has an undivided interest in the common elements of
the condominium, such an owner is precluded from claiming ownership, through adverse possession, of
a condominium unit that is part of the common elements of the condominium. st. Jean Place Con-
dominium Ass'n v. DeLeo, 745 A.2d 738 (R.!. 2000).
[FN3] Beal Bank, S.S.B. v. Thornton, 70 Ark. App. 336, 19 S.W.3d 48 (2000).
[FN4] Porterfield v. Spurgeon, 379 So. 2d 56 (La. Ct. App. 3d Cir. 1979), writ denied, 381 So. 2d 1235
(La. 1980).
[FN5] Pluhar v. Guderjahn, 134 Mont. 46, 328 P.2d 129 (1958).
[FN6] Trustees of University of South Carolina v. City of Columbia, 108 S.c. 244, 93 S.E. 934 (1917);
Board of Ed. of Memphis City Schools v. Shelby County, 155 Tenn. 212, 292 S.W. 462 (1927).
State could not claim title to county land by adverse possession. Coos County v. State, 303 Or. 173, 734
P.2d 1348 (1987).
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AMJUR ADVERSE § 175
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AMJUR ADVERSE § 176
3 Am. Jur. 2d Adverse Possession § 176
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
lll. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
1. In General
Topic Summary Correlation Table References
§ 176. Principal and agent
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=;:>4, 10
Page 363 of 665
Page 1
Under the rule that the possession of an agent is the possession of the principal,[l] the possession of land by
an agent cannot be deemed adverse to the principal.[2] On the contrary, possession by an agent will be con-
sidered to be the possession of the principal in the absence of proof to the contrary.[3] This is true even as to the
possession of one who acts as agent without authority, or one who exceeds authority as an agent.[4]
Under certain circumstances, however, the holding of land by an agent may be adverse to the principal, and
where an agent disavows the idea of holding property as an agent and asserts an exclusive right in the property,
either with the principal's actual knowledge, or so openly and notoriously that the principal must know of it, the
possession then becomes adverse.[5] An agent may hold adversely to a fonner principal after the agency is ter-
minated.[6]
[FNI] §23.
[FN2] McCreary v. Coggeshall, 74 S.c. 42, 53 S.E. 978 (1906).
As to duty of agent not to act adversely to principal, see 3 Am. Jur. 2d, Agency §§ 228 to 245.
[FN3] McCreary v. Coggeshall, 74 S.c. 42, 53 S.E. 978 (1906).
[FN4] Ashford v. Ashford, 136 Ala. 631, 34 So. 10 (1903).
[FN5] Davis v. Williams, 130 Ala. 530, 30 So. 488 (1901).
[FN6] Chapin v. Letcher, 93 N.W.2d 415 (N.D. 1958).
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AMJUR ADVERSE § 176 Page 2
3 Am. Jur. 2d Adverse Possession § 176
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AMJUR ADVERSE § 176
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AMJUR ADVERSE § 177
3 Am. Jur. 2d Adverse Possession § 177
American Jurisprudence, Second Edition
Database updated November 20 \0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
I. In General
Topic Summary Correlation Table References
§ 177. Partners
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=4, 10
Page 365 of 665
Page I
It is a general principle that a partner cannot derive any benefit from the partnership relationship for such
partner as against copartners or from any act that constitutes a breach of duty to the firrn.[ I] This principle pre-
vents a partner from secretly acquiring an outstanding title to partnership property and setting it up against a co-
partner.[2] Moreover, where real estate is purchased and paid for with partnership funds and conveyed to one
partner, no length of possession by such partner bars the other partners.[3]
[FN I] 59A Am. Jur. 2d, Partnership §§ 443, 449.
[FN2] 59A Am. Jur. 2d, Partnership § 449.
[FN3] Riddle v. Whitehill, 135 U.S. 621, \0 S. CI. 924, 34 L. Ed. 282 (1890).
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AMJUR ADVERSE § 178
3 Am. Jur. 2d Adverse Possession § 178
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
1. In General
Topic Summary Correlation Table References
§ 178. Bailor and bailee
West's Key Number Digest
West's Key Number Digest, Adverse Possession o€=4, 10
Forms
Page 366 of 665
Page I
Form drafting guide-Checklist-Matters to consider when drafting an affidavit respecting adverse posses-
sion. IA Am. Jur. Legal Forms 2d, Adverse Possession § II: 17.
Affidavit-Disclaimer of title-By bailee. IA Am. Jur. Legal Forms 2d, Adverse Possession § II: 19.
The mere retention by a bailee of the subject matter, however exclusive or however long continued, will not
in itself be sufficient to work a change of property or ownership therein.[I] However, there is support for the
view that in certain cases the assertion by a bailee of an adverse title against the bailor, and a continued posses-
sion of the property that is open, notorious, and hostile to the bailor's title, and of which the bailor is charged
with notice, may ripen into title by adverse possession in the bailee,[2] although there is authority stating that a
bailee must return the property or its proceeds to the bailor before the bailee can assert a claim thereto adverse to
the bailor.[3] The general rule appears to be that a bailment is not so far terminated as to start the running of the
statute of limitations in favor of the bailee, so as to base a claim of title by adverse possession, until the bailee
sets up and asserts some claim adverse to the bailor which amounts to a disclaimer of the bailor's title and on
which the bailee's possession may be based.[4]
[FNI] Edgar v. Parsell, 184 Mich. 522,151 N.W. 714 (1915).
[FN2] Edgar v. Parsell, 184 Mich. 522, 151 N.W. 714 (1915).
[FN3] B1ackorby v. Friend, Crosby & Co., 134 Minn. I, 158 N.W. 708 (1916).
As to nature of bailee's possession, see 8A Am. Jur. 2d, Bailments § 55.
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AMJUR ADVERSE § 178 Page 2
3 Am. Jur. 2d Adverse Possession § 178
[FN4) Slack v. Bryan, 299 Ky. 132, 184 S.W.2d 873 (1945); Priester v. Milleman, 161 Pa. Super. 507,
55 A.2d 540 (1947).
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AMJUR ADVERSE § 178
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AMJUR ADVERSE § 179
3 Am. Jur. 2d Adverse Possession § 179
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
1. In General
Topic Summary Correlation Table References
§ 179. Guardian and ward
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>4, 10
Page 368 of 665
Page I
Under the rule that a guardian's possession is deemed to be the possession of the ward,[ I] a guardian's pos-
session cannot ordinarily lay the foundation of a claim of adverse possession of a guardian as against the ward.[2
] Thus, the general rule is that as long as the relationship of guardian and ward exists, the guardian may not as-
sert an interest or title antagonistic to the ward, and therefore cannot hold property adversely to the ward.[3]
However, a guardian may repudiate the trust and thereafter hold adversely to the ward.[4] Further, if the
guardian buys land at a guardian's sale, rendering the sale voidable, the guardian may gain title by adverse pos-
session, the statute beginning to run when the ward is ofage.[5]
[FNI] § 153.
[FN2] State v. Bank of Bristol, 165 Tenn. 461, 55 S.W.2d 771 (1933).
As to trust relation between guardian and ward, see 39 Am. Jur. 2d, Guardian and Ward §§ 246 to 255.
[FN3] Garcia v. Sanchez, 64 N.M. 114,325 P.2d 289 (1958).
As to possession of guardian being adverse to ward, see 39 Am. JUL 2d, Guardian and Ward § 252.
[FN4] Garcia v. Sanchez, 64 N.M. 114,325 P.2d 289 (1958).
[FN5] Hindman v. O'Connor, 54 Ark. 627, 16 S.W. 1052 (1891).
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AMJUR ADVERSE § 179 Page 2
3 Am. Jur. 2d Adverse Possession § 179
AMJUR ADVERSE § 179
END OF DOCUMENT
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AMJUR ADVERSE § 180
3 Am. Jur. 2d Adverse Possession § 180
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
2. Members of Family
Topic Summary Correlation Table References
§ 180. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession €o=4, 10
A.L.R. Library
Page 370 of665
Page I
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353 § 15 (effect of family relation-
ship between grantor and grantee).
It is a general principle that members of a family may not acquire adverse possession against each other in
the absence of a showing of a clear, positive, and continued disclaimer and disavowal of title, and an assertion of
an adverse right brought home to the true owner a sufficient length of time to bar the owner under the statute of
limitations from asserting ownership rights.[I] The existence of a family relationship between the parties will
prevent[2] or rebut[3] a presumption of adverse holding.
Practice Guide:
Stronger evidence of adverse possession is required where there is a family relation between the parties than
where no such relation exists,[4] and such claims should not be sustained except on a clear preponderance of the
evidence.[5]
CUMULATIVE SUPPLEMENT
Cases:
When there is a family relation between cotenants, stronger evidence of adverse possession is required.
Sherman v. Wallace, 88 Ark. App. 229,197 S.W.3d 10 (2004).
lEND OF SUPPLEMENT]
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AMJUR ADVERSE § 180 Page 2
3 Am. Jur. 2d Adverse Possession § 180
[FNI] Petsch v. Widger, 214 Neb. 390, 335 N.W.2d 254 (1983).
[FN2] Lynch v. Lynch, 236 S.c. 612, 115 S.E.2d 301 (1960).
[FN3] Metze v. Meetze, 231 S.c. 154,97 S.E.2d 514 (1957).
[FN4] McGuire v. Wallis, 231 Ark. 506, 330 S.W.2d 714 (1960); Staggs v. Story, 220 Ark. 823,250
S.W.2d 125 (1952).
[FN5] Lynch v. Lynch, 236 S.c. 612,115 S.E.2d 301 (1960).
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AMJUR ADVERSE § 180
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AMJUR ADVERSE § 181
3 Am. Jur. 2d Adverse Possession § 181
American Jurisprudence, Second Edition
Database updated November 20 10
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
2. Members of Family
Topic Summary Correlation Table References
§ 181. Parent and child
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£:=4, 10
West's Key Number Digest, Parent and Child <£:=8
Page 372 of665
Page I
As a general rule, an adverse possession cannot be predicated on the possession of the parent as against a
child.[l) The possession by a parent of a child's land will not be deemed adverse to the child, and such posses-
sion will ordinarily be presumed to be permissive and not adverse.[2]
Also, as a general rule, an adverse possession cannot be predicated on the possession of a child as against its
parent.[3] Where one occupies land by permission of the parents and not under a claim of title, the possession is
not adverse.[4] In such case, the fact that the parents promised to give the land to the occupying child generally
will not alter the result, at least as far as adverse possession of the land by the child is concemed.[5]
In order that a possession by a parent against a child, or vice versa, may become adverse, the owner must
have had some clear, definite, and unequivocal notice of the adverse claimant's intention to assert an exclusive
ownership in the c1aimant.[6] A child who works on land for a parent may afterward in good faith hold the land
adversely to the parent where the child buys the land from the county at a tax sale after notice to the parent and
without knowledge at that time of any infirmity in the county's tille.[7]
Caution:
Where there is a relationship of parent and child between adverse claimants and adjoining owners, the claimants
are required to sustain their proof of adverse possession by stronger evidence than is required in ordinary cases
involving the question.[8]
[FNI] Hehnke v. Starr, 158 Neb. 575, 64 N.W.2d 68 (1954).
[FN2] Mullan v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323 (1931).
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AMJURADVERSE § 181
3 Am. Jur. 2d Adverse Possession § 181
[FN3] Cockrell v. Kelley, 428 So. 2d 622 (Ala. 1983).
[FN4] Triplett v. Chadwick, 311 S.W.2d 554 (Ky. 1958).
[FN5] Humphrey v. Harrison, 646 S.W.2d 340 (Ky. 1982).
Page 373 of665
Page 2
[FN6] Bellamy v. Shryock, 211 Ark. 116, 199 S.W.2d 580 (1947); Anderson v. Shelton, 92 N.W.2d
166,73 A.L.R.2d 1087 (N.D. 1958).
Where a son remained in actual, open, hostile, notorious, exclusive, and continuous possession of a
farm for 20 years, which a father had "permitted" the son to have and attempted orally to give the son
prior to the father's death, the son gained title by adverse possession which claim commenced prior to
the father's death. Pendley v. Pendley, 338 So. 2d 405 (Ala. 1976).
[FN7] Anderson v. Shelton, 92 N.W.2d 166,73 A.L.R.2d 1087 (N.D. 1958).
[FN8] Bellamy v. Shryock, 211 Ark. 116, 199 S.W.2d 580 (1947).
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AMJUR ADVERSE § 182
3 Am. Jur. 2d Adverse Possession § 182
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
2. Members of Family
Topic Summary Correlation Table References
§ 182. Husband and wife
West's Key Number Digest
West's Key Number Digest, Adverse Possession <C=4, 10
West's Key Number Digest, Husband and Wife <C=16
A.L.R. Library
Adverse possession under parol gift ofland (under parol gift), 43 A.L.R. 2d 6 § lOb.
Page 374 of 665
Page I
The rule is well settled, at least in the absence of possession under color of title,[I] that neither spouse can
acquire title by adverse possession, as against the other, of lands of which they have the joint use or are in joint
occupancy, during the continuance of the marriage relationship.[2] Neither spouse in possession of property as
tenants by the entirety can acquire title against the other by adverse possession.[3] The fact that one spouse
holding land in common with the other spouse manages, improves, and rents it, and collects the rent, does not
make the possession hostile and adverse to the interest of the other spouse.[4]
Observation:
Even if it were conceded that spouses under any circumstances could acquire title to lands of the other by ad-
verse possession, certainly neither can do so by having joint possession with the other, since one of the essential
elements of adverse possession is that the possession must be exclusive, and two persons cannot hold the same
property adversely to each other at the same time.[5]
A person who is living with his or her spouse on the spouse's land cannot, at least not without color of title,
and in some jurisdictions even with color of title, acquire title to the lands by adverse possession during the con-
tinuance of the marriage relationship.[6] Even the exclusive possession by one spouse of the other spouse's land
is not necessarily adverse. [7] The fact that a husband is in possession of his wife's land and makes improvements
out of the proceeds of the profits from the land gives him no interest in the title.[8]
However, a statement by one spouse to the other spouse that the other spouse has no interest in the property,
in which the other spouse claims a resulting trust on the ground of having made a contribution to the purchase
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AMJUR ADVERSE § 182 Page 2
3 Am. Jur. 2d Adverse Possession § 182
price, constitutes a repudiation of any trust that may exist, making inapplicable the rule that a trustee may not
claim title by adverse possession.[9]
[FNI] § 183.
[FN2] Kelley v. Kelley, 51 R.I. 173, 153 A. 314, 74 A.L.R. 135 (1931); Stealey v. Lyons, 128 W. Va.
686,37 S.E.2d 569 (1946).
As to adverse possession by spouses jointly, see § 154.
[FN3] Alles v. Lyon, 216 Pa. 604, 66 A. 81 (1907).
[FN4] Allen v. Allen, 292 Ill. 453, 127 N.E. 85,27 A.L.R. I (1920).
[FN5] Howard v. Turner, 287 Ky. 206,152 S.W.2d 589 (1941).
As to exclusiveness of possession, see §§ 67, 68.
[FN6] Union Oil Co. v. Stewart, 158 Cal. 149, 110 P. 313 (1910) (recognizing rule); McCallister v. Mc-
Callister, 342 111. 23 I, 173 N.E. 745, 74 A.L.R. 213 (1930).
[FN7] Hom v. Metzger, 234 Ill. 240, 84 N.E. 893 (1908).
[FN8] McCallister v. McCallister, 342 Ill. 23 I, 173 N.E. 745, 74 A.L.R. 213 (1930).
[FN9] Cassas v. Cassas, 73 Wyo. 147,276 P.2d 456, 69 A.L.R.2d 187 (1954).
As to adverse possession by a trustee, generally, see §§ 175, 176.
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AMJUR ADVERSE § 182
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AMJUR ADVERSE § 183
3 Am. Jur. 2d Adverse Possession § 183
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
2. Members of Family
Topic Summary Correlation Table References
§ 183, Husband and wife-Under color of title
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=:>4, 10
West's Key Number Digest, Husband and Wife €=:>16
Page 376 of 665
Page 1
There is a conflict of authority as to the effect on adverse possession between husband and wife of posses-
sion by one spouse under color of title, some cases holding that one spouse cannot acquire title by adverse pos-
session to lands of the other even with possession under color of title,[ I] whereas other cases hold that title may
be acquired where the possession is under color of title.[2] A judgment purporting to vest title to the land of one
spouse in the other spouse is held to be color of title on which adverse possession can be based.[3]
Observation:
The presumption that possession by a spouse living with the other spouse is through and on account of the fam-
ily relation, and not under a claim of adverse ownership, does not arise where some reason exists for the asser-
tion of a title by the adverse claimant, and in such case, there is no greater reason for denying the right to ac-
quire title by adverse possession than for denying the right to maintain a suit against the spouse to recover a
debt, or to foreclose a mortgage on premises occupied by them.[4]
[FN I] Carpenter v. Booker, 131 Ga. 546,62 S.E. 983 (1908).
[FN2] Adams v. Adams, 80 N.H. 80, 113 A. 279 (1921).
[FN3] Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956).
[FN4] McPherson v. McPherson, 75 Neb. 830,106 N.W. 991 (1906).
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AMJUR ADVERSE § 183 Page 2
3 Am. Jur. 2d Adverse Possession § 183
AMJUR ADVERSE § 183
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AMJUR ADVERSE § 184
3 Am. Jur. 2d Adverse Possession § 184
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
2. Members of Family
Topic Summary Correlation Table References
§ 184. Husband and wife-Where spouses live apart; effect of divorce
West's Key Number Digest
West's Key Number Digest, Adverse Possession €o=4, 10
West's Key Number Digest, Husband and Wife €o=I6
Page 378 of 665
Page I
After divorce, former spouses ordinarily may hold adversely to each other,[I] provided the necessary re-
quisites of an adverse possession are established. This may be true even though the divorce is invalid.[2]
However, the possession of land by one spouse as trustee for the use and benefit of the other spouse is not ad-
verse even after the spouse has obtained a divorce, and in such case, the spouse can hold adversely only by re-
nouncing title as trustee, surrendering the possession, and retaking it.[3]
The cases are not in accord as to adverse possession after abandonment, and some hold that a spouse who
has been abandoned by the other spouse may acquire title to his or her land by adverse possession,[4] provided
the possession is, in fact, adverse.[5] Other cases deny the right so to acquire such property.[6]
[FNI] Bride v. Walker, 206 Ark. 498,176 S.W.2d 148 (1943).
[FN2] Bride v. Walker, 206 Ark. 498,176 S.W.2d 148 (1943).
[FN3] Meacham v. Bunting, 156111. 586,41 N.E. 175 (1895).
[FN4] Union Oil Co. v. Stewart, 158 Cal. 149, 110 P. 313 (1910).
[FN5] Hayworth v. Williams, 102 Tex. 308,116 S.W. 43 (1909).
[FN6] Kelley v. Kelley, 51 R.1. 173, 153 A. 314, 74 A.L.R. 135 (1931).
A woman whose marriage was invalid did not acquire title by adverse possession as against her hus-
band, although the husband remained away from her during most of the period in question, sometimes
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Page 379 of 665
AMJUR ADVERSE § 184 Page 2
3 Am. Jur. 2d Adverse Possession § 184
for years at a time, and on the occasions of his visits did not remain long. Hayworth v. Williams, 102
Tex. 308,116 S.W. 43 (1909).
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AMJUR ADVERSE § 184
END OF DOCUMENT
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West law,
AMJUR ADVERSE § 185
3 Am. Jur. 2d Adverse Possession § 185
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
3. Parties to Judgments and Judicial Sales
Topic Summary Correlation Table References
§ 185. Generally; parties to suit and purchaser pendente lite
West's Key Numher Digest
West's Key Number Digest, Adverse Possession <C::::>4, 10
West's Key Number Digest, Judicial Sales <C::::>32, 61
Page 380 of665
Page I
The possession of a purchaser pendente lite of property involved in a suit may become adverse to the parties
to the suit after termination of the litigation if the elements of adverse possession are otherwise present.[ I]
However, during the litigation the possession of a purchaser pendente lite is not adverse to the parties to the
suit.[2] Thus, a pendente lite purchaser from a judgment debtor in an action to enforce a judgment lien against
real estate of the debtor does not during the pendency of the suit hold such real estate adversely to the party
seeking to enforce the lien.[3]
Observation:
If the rule were otherwise, alienations made by parties during the pendency of the suit might defeat its whole
purpose, and there would be no end to the Iitigation.[4]
[FNI] Brown v. Crozer Coal & Land Co., 144 W. Va. 296,107 S.E.2d 777 (1959).
[FN2] Playa De Flor Land & Imp. Co. v. U.S., 70 F. Supp. 281 (D. C.Z. 1945), judgment modified on
other grounds, 160 F.2d 131 (C.C.A. 5th Cir. 1947).
[FN3] Parker's Adm'r v. Clarkson, 39 W. Va. 184, 19 S.E. 431 (1894).
[FN4] Playa De Flor Land & Imp. Co. v. U.S., 70 F. Supp. 281 (D. C.Z. 1945), judgment modified, 160
F.2d 131 (C.C.A. 5th Cir. 1947).
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Page 381 of665
AMJUR ADVERSE § 185 Page 2
3 Am. Jur. 2d Adverse Possession § 185
AMJUR ADVERSE § 185
END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 186
3 Am. Jur. 2d Adverse Possession § 186
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
HI. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
3. Parties to Judgments and Judicial Sales
Topic Summary Correlation Table References
§ 186. Owner and tax sale purchaser
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=4, 10
West's Key Number Digest, Judicial Sales €=32, 61
A. L.R. Library
Page 382 of 665
Page I
Tax sales or forfeitures by or to governmental units as interrupting adverse possession, 50 A.L.R. 2d 600 §§
3 to 5.
Owners remaining in possession for the statutory period after a tax foreclosure sale can obtain title by ad·
verse possession.[1]
Reminder:
Some statutes provide that where land is sold for taxes and the owner or a successor holds the land in adverse
possession for the statutory period after the sale, such possession shall be a bar to any action by the purchaser to
obtain the land.[2]
The possession of a purchaser at a tax sale during the period of redemption is presumptively subordinate to
the owner's title if the statute gives the purchaser the right of possession during such period, but that the posses·
sion is hostile if the purchaser lacks the legal right to possess the property prior to the expiration of the redemp-
tion period.[3] Therefore, a purchaser at a tax sale who wrongfully enters on the land under a tax sale certificate,
and who holds the land under a claim of right, openly, peaceably, hostilely, and continuously for the statutory
period, acquires title as an adverse possessor.[4]
After a county acquires property at a tax sale, a taxpayer's continued possession, allegedly adverse to the
title of the county, does not vest fee simple title in the taxpayer.[5]
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Page 383 of 665
AMJUR ADVERSE § 186 Page 2
3 Am. Jur. 2d Adverse Possession § 186
[FNI] Harvey v. Peters, 227 S.W.2d 867 (Tex. Civ. App. Fort Worth 1950).
As to defeat of valid tax title by adverse possession, see 72 Am. Jur. 2d, State and Local Taxation § 862 .
As to right of person in adverse possession of property to attack title of tax sale purchaser, see 72 Am.
Jur. 2d, State and Local Taxation § 942.
[FN2] White v. Hardisty, 220 Md. 152, 151 A.2d 764 (1959).
[FN3] Gunther & Shirley Co. v. Presbytery of Los Angeles, 85 Ariz. 56, 331 P.2d 257 (1958); Feinstein
v. McGuire, 297 S.W.2d 513 (Mo. 1957).
[FN4] Gunther & Shirley Co. v. Presbytery of Los Angeles, 85 Ariz. 56, 331 P.2d 257 (1958).
[FN5] Moultrie v. Wright, 266 Ga. 30,464 S.E.2d 194 (1995); Fred E. Young, Inc. v. Brush Mountain
Sportsmen's Ass'n, 697 A.2d 984 (Pa. Super. C!. 1997).
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AMJUR ADVERSE § 186
END OF DOCUMENT
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WestLaw.
AMJUR ADVERSE § 187
3 Am. Jur. 2d Adverse Possession § 187
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Patticular Relationships between Parties
3. Patties to Judgments and Judicial Sales
Topic Summary Correlation Table References
§ 187. Parties to judicial sales
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 4 , 10
West's Key Number Digest, Judicial Sales ~ 3 2 , 61
Page 384 of 665
Page I
As a general rule, an owner who stays in possession of property after a judicial sale thereof does not hold
adversely to the purchaser.[I] The continued possession of the owner of land between the date of its sale by
commissioners and the making of the final decree confirming the conveyance is not adverse to the grantee in
such conveyance, as until the sale is confirmed, such owner holds, under the control of the court, by virtue of his
or her own title.[2] Where land is sold at a judicial sale and the buyer allows the former owner to remain in pos-
session after confirmation, the presumption is that the possession of the original owner is as a quasi tenant or
tenant at sufferance of the buyer, and the legal principles governing the acquisition of an adverse title by a ten-
ant as against the landlord[3] are applicable.[4]
The possession of the former owner of land sold by judicial sale will not become adverse as against the title
of the purchaser at the sale, unless by clear, positive, and affirmative action brought home to the new owner, the
one in possession puts the purchaser on notice that the possessor is unequivocably disclaiming the existing ten-
ancy and intends thereafter to claim possession antagonistic to the new owner.[5] Thus, the possession of a judg-
ment debtor may be adverse to that of the purchaser under the judgment, and this is so where it is shown that the
judgment debtor has claimed title, openly and notoriously, for the statutory period.[6]
[FNI] Sarasota-Fruitville Drainage Dist. v. All Lands Within Said Dis!. Upon Which Drainage Taxes
for Year 1928 Have Not Been Paid, 157 Fla. 207, 25 So. 2d 498 (1946); Brewster v. Herron, 1952 OK
440,267 P.2d 143,38 A.L.R.2d 335 (Okla. 1952).
[FN2] Rosenstihl v. Cherry, 114 Ohio St. 401, 4 Ohio L. Abs. 226,151 N.E. 642 (1926).
[FN3] §§ 197 to 200.
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AMJUR ADVERSE § 187 Page 2
3 Am. Jur. 2d Adverse Possession § 187
[FN4] Sarasota-Fruitville Drainage Dis!. v. All Lands Within Said Dis!. Upon Which Drainage Taxes
for Year 1928 Have Not Been Paid, 157 Fla. 207, 25 So. 2d 498 (1946); Brewster v. Herron, 1952 OK
440,267 P.2d 143, 38 A.L.R.2d 335 (Okla. 1952).
[FN5] Sarasota-Fruitville Drainage Dis!. v. All Lands Within Said Dis!. Upon Which Drainage Taxes
for Year 1928 Have Not Been Paid, 157 Fla. 207, 25 So. 2d 498 (1946); Brewster v. Herron, 1952 OK
440,267 P.2d 143,38 A.L.R.2d 335 (Okla. 1952).
[FN6] Bosley v. Stewart, 140 Iowa 101, 117 N. W. 1103 (1908).
The actual and visual possession of property by a debtor for seven years after a creditor obtained a sher-
iffs deed fulfilled the requirements of peaceful possession and adverse possession within the meaning
of the applicable statute. Henderson v. Tejada, 26 Ariz. App. 462, 549 P.2d 242 (Div. I 1976).
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rights reserved.
AMJUR ADVERSE § 187
END OF DOCUMENT
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WeStlaw.
AMJUR ADVERSE § 188
3 Am. Jur. 2d Adverse Possession § 188
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
3. Parties to Judgments and Judicial Sales
Topic Summary Correlation Table References
§ 188. When statute begins to run-Against purchaser at judicial sale
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=4, 10
West's Key Number Digest, Judicial Sales €=32, 61
Page 386 of665
Page I
There is a conflict of authority on the question when the statute of limitations or period of adverse posses-
sion commences to run against a purchaser at a judicial sale. Some cases state that where the purchaser has paid
the purchase price, and is entitled to a deed, the purchaser has the power to protect his or her interest by appro-
priate proceedings and the statute commences to run at that time, although a deed has not been received.[I] In
some jurisdictions, the statute of limitations begins to run against a purchaser at a judicial sale from the date of
delivery of the deed and not from the confirmation of the sale.[2] It has also been held that the statute begins to
run against a purchaser after the expiration of the period within which the defendant in execution might have re-
deemed the land if there had been a genuine sale of it,[3] and that the period of prescription should be reckoned
from the date of the sheriffs sale and not from the date of the service of notice of seizure under which the sale
was made.[4]
[FNI] Marion Inv. Co. v. Virginia Lincoln Furniture Corp., 171 Va. 170,198 S.E. 508, 118 A.L.R. 939
(1938).
[FN2] Comstock v. Finn, 13 Cal. App. 2d lSI, 56 P.2d 957 (4th Dis!. 1936).
[FN3] McGee v. Stokes' Heirs at Law, 76 N.W.2d 145 (N.D. 1956).
[FN4] Maisonneuve v. Martin, ISS La. 938, 99 So. 704 (1924).
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AMJUR ADVERSE § 188
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Page 387 of 665
AMJUR ADVERSE § 188 Page 2
3 Am. JUT. 2d Adverse Possession § 188
END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 189
3 Am. Jur. 2d Adverse Possession § 189
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
C. Effect of Patticular Relationships between Patties
4. Patties to Sales, Grants, and Gifts
Topic Summary Correlation Table References
§ 189. Seller and purchaser-Under executory contract or bond for title
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=4, 10
A.L.R. Library
Forged deed or bond for title as constituting color oftitle, 68 A.L.R. 2d 452 § 4.
Page 388 of 665
Page I
The purchaser under an executory contract of sale enters into possession under, and without hostility to, the
seller.[l] Accordingly, it is the general rule (which, however, frequently yields when additional circumstances
appear) that the possession taken by a purchaser under an executory written contract for the purchase of land is
not adverse to the seller,[2] although it is as against everyone else,[3] and is as against the seller to the extent of
permitting the purchaser to dispute the seller's title.[4]
A purchaser's possession under an executory contract may become adverse to the seller, however,[5] but not
until the purchaser has repudiated the seller's title openly and notoriously, and asserted an exclusive right in the
property.[6]In such case, it is necessary that notice, either actual or constructive, of the repudiation, be given to
the seller.[7] Generally, the possession of the purchaser may be rendered adverse by such repudiation and notice,
without the necessity of surrendering the possession acquired under the executory contract.[8]
Although possession of the purchaser under an executory contract of purchase is not rendered adverse to the
seller by mere default, where there is some act on the patt of either the purchaser or the seller that characterizes
the possession as hostile, it then is deemed to become adverse.[9] A purchaser may disavow the title of the seller
after breach of the contract, but in such cases there must be a positive and continued disclaimer of title, and an
assertion of adverse right must be brought home to the seller, before the statute of limitations will begin to oper-
ate.[ I 0] The fact that purchasers paid on a seller's lien for several years does not prevent adverse possession
from maturing on the basis of disclaimer of the seller's title.[ll]
With respect to the nature of the possession taken by the purchasers under executory contracts, no distinc-
tion is made between executory contracts for the sale of land and bonds for title, and it is generally the rule that
the possession taken by a purchaser under a bond for title to land is not adverse as to the seller.[12]
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Page 389 of 665
AMJUR ADVERSE § 189 Page 2
3 Am. Jur. 2d Adverse Possession § 189
[FNI] Leo Egan Land Co., [nco V. Heelan, 210 Neb. 263, 313 N.W.2d 682 (1981).
[FN2] Leo Egan Land Co., [nco V. Heelan, 210 Neb. 263, 313 N.W.2d 682 (1981); Smith V. Pittston Co.,
203 Va. 408, 124 S.E.2d I (1962) (possession under an alleged verbal agreement of sale was not ad-
verse to the alleged seller's title but in privity with it and under its protection).
[FN3] WeIner V. Steams, 40 Utah 185, 120 P. 490 (1911).
[FN4] Blight's Lessee V. Rochester, 20 U.S. 535, 5 L. Ed. 516 (1822).
[FN5] Ripley V. Miller, 165 Mich. 47,130 N.W. 345 (1911).
[FN6] Chavez V. De Bergere, 231 U.S. 482, 34 S. C!. 144,58 L. Ed. 325 (1913).
The possession of the purchaser holding under an executory contract of purchase is not adverse to the
seller unless or until the purchaser by acts or otherwise, has repudiated the seller's title. McGuire v.
Owens, 300 S.W.2d 556 (Ky. 1957).
As to when pennissive possession changes to hostile possession, generally, see § 50.
[FN7] Beagle v. Hanks, 125 Cal. App. 2d 298, 270 P.2d 113 (3d Dis!. 1954).
[FN8] Zeller's Lessee V. Eckert, 45 U.S. 289,4 How. 289, II L. Ed. 979 (1846).
[FN9] Bennett V. Morrison, 120 Pa. 390,14 A. 264 (1888).
[FNIO] Zeller's Lessee v. Eckert, 45 U.S. 289, 4 How. 289, II L. Ed. 979 (1846).
[FNII] Parr v. Ratisseau, 236 S.W.2d 503 (Tex. Civ. App. San Antonio 1951), writ refused n.r.e.
[FNI2] Hardin V. Boyd, 113 U.S. 756, 5 S. Ct. 771, 28 L. Ed. 1141 (1885).
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AMJUR ADVERSE § 189
END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 190
3 Am. Jur. 2d Adverse Possession § 190
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
4. Parties to Sales, Grants, and Gifts
Topic Summary Correlation Table References
§ 190. Seller and purchaser-Under executed contract or bond for title
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=4, 10
Page 390 of 665
Page I
It is the general rule that a purchaser who has complied with the terms of the contract by paying the pur-
chase money, and who is entitled to the legal title, has a perfect equity, and possession by such purchaser, in
pursuance of such sale and purchase, is presumed to be antagonistic, and, if continued for the statutory period,
will bar the seller's right of entry or action.[I] Thus, performance by the purchaser of the obligations imposed on
the purchaser by the executory contract of purchase, entitling the purchaser to demand a deed, is generally held
to convert the possession of the purchaser into an adverse one,[2] whether the contract is oral or written.[3]
Moreover, since tender of perfonnance is sufficient to entitle the purchaser to a deed, generally after such tender
on the part of the purchaser possession by the purchaser is adverse.[4]
Observation:
Since even a defective title or a conveyance by one who has no title is effective as color of title on which an ad-
verse claim may be based,[5] a purchaser's possession is not prevented from being adverse by such purchaser's
knowledge of a defect in the title or subsequent demand for a deed.[6]
[FNI] Croxall v. Shererd, 72 U.S. 268,18 L. Ed. 572 (1866).
[FN2] Central Pac. Ry. Co. v. Tarpey, 51 Utah 107, 168 P. 554,1 A.L.R. 1319 (1917).
[FN3] Bessler v. Powder River Gold Dredging Co., 95 Or. 271,185 P. 753 (1919).
[FN4] Gamble v. Hamilton, 31 Fla. 401, 12 So. 229 (1893); Brown v. Huey, 103 Ga. 448, 30 S.E. 429
(1898) (part payment of the purchase price is not sufficient to entitle the purchaser to claim adverse
possession; the whole of the purchase price must be paid, or at least tendered).
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Page 391 of 665
AMJUR ADVERSE § 190 Page 2
3 Am. Jur. 2d Adverse Possession § 190
As to executory contracts or bonds for title, see § 189.
[FN5] §§ 123 et seq.
[FN6] Newsome v. Snow, 91 Ala. 641, 8 So. 377 (1890); Bessler v. Powder River Gold Dredging Co.,
95 Or. 271,185 P. 753 (1919).
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AMJUR ADVERSE § 190
END OF DOCUMENT
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AMJUR ADVERSE § 191
3 Am. Jur. 2d Adverse Possession § 191
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Patticular Relationships between Parties
4. Parties to Sales, Grants, and Gifts
Topic Summary Correlation Table References
§ 19L Seller and purchaser-Effect of invalid, unauthorized, or forged contract or bond
West's Key Number Digest
West's Key Number Digest, Adverse Possession <€>4, 10
Page 392 of 665
Page I
As a general rule, an executory parol contract of purchase will not have the effect of rendering adverse, as to
the seller, the possession taken under the parol contract by a purchaser who enters into possession in pursuance
thereof.[I] Since the possession of the purchaser is taken in pursuance of the contract, therefore amicably to the
seller, it is looked on as so continuing, regardless of the fact that the purchaser cannot enforce rights as pur-
chaser under the contract.[2] Thus, when a party goes into possession under a verbal contract for the purchase of
land, such possession is not adverse to the seller, according to the prevailing view, but is held under the seller[3]
until the purchase money is paid.[4]
It is the rule in some jurisdictions, however, that the possession of a purchaser by parol is adverse from the
date possession is taken.[5] Further, as in other cases, the possession of the purchaser may become adverse, even
though the contract is in parol, by repudiation of the contract by the purchaser and the assertion of a claim of
right in such purchaser[6] or by the payment of the purchase price where the contractual obligation consists of a
monetary consideration.[7]
[FNI] Creech v. Creech, 186 Ky. 149,216 S.W. 127 (1919).
[FN2] Creech v. Creech, 186 Ky. 149,216 S.W. 127 (1919).
[FN3] Lanham v. Bowlby, 86 Neb. 148, 125 N.W. 149 (1910); Thompson v. Camper, 106 Va. 315, 55
S.E. 674 (1906).
[FN4] Moring v. Ables, 62 Miss. 263,1884 WL 6504 (1884).
[FN5] Moffitt v. Meeks, 29 Tenn. App. 609,199 S.W.2d 463 (1946).
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AMJURADVERSE § 191
3 Am. Jur. 2d Adverse Possession § 191
[FN6] Creech v. Abner, 106 Ky. 239, 20 Ky. L. Rptr. 1812,50 S.W. 58 (1899).
[FN7] Moring v. Ables, 62 Miss. 263, 1884 WL 6504 (1884).
Page 393 of 665
Page 2
It is well settled that a purchaser who has complied with the terms of the contract by paying the pur-
chase money, and is entitled to the legal title, whether the contract be in writing or by parol, has a per-
fect equity, and possession in pursuance of such sale and purchase is presumed to be antagonistic. New-
some v. Snow, 91 Ala. 641, 8 So. 377 (1890).
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rights reserved.
AMJUR ADVERSE § 191
END OF DOCUMENT
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Westlaw
AMJUR ADVERSE § 192
3 Am. Jur. 2d Adverse Possession § 192
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
4. Parties to Sales, Grants, and Gifts
Topic Summary Correlation Table References
§ 192. Grantor and grantee; possession by grantee
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=4, 10
A.L.R. Library
Grantor's possession as adverse possession against grantee., 39 A.L.R. 2d 6 §§ 6, 12
Page 394 of 665
Page 1
A grantee's possession becomes adverse, not only as to the grantor, but as to all the world, from the time a
conveyance has actually been made.[1] However, there can be no adverse possession by the grantee of a deed
made as a security for a debt.[2]
Observation:
The possession of a grantee is presumptively adverse to the grantor, and the practical utility of this rule is that a
grantee may acquire title by adverse possession as against the grantor even though the conveyance under which
the grantee holds is defective.[3]
The possession of the grantee is not shown to be adverse where the grantee recognized the paramount nature
of the grantor's claim to property by paying rent for its use after the conveyance.[ 4]
[FNI] Villa v. Rodriguez, 79 U.S. 323, 20 L. Ed. 406 (1870).
[FN2] Babcock v. Wyman, 60 U.S. 289,19 How. 289,15 L. Ed. 644 (1856).
As to mortgages, generally, see 54A Am. Jur. 2d, Mortgages.
[FN3] Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984); Polanski v. Town of Eagle Point, 30 Wis. 2d
507,141 N.W.2d 281 (1966).
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Page 395 of 665
AMJUR ADVERSE § 192 Page 2
3 Am. Jur. 2d Adverse Possession § 192
As to a tax deed grantee, see § 186.
[FN4] Findlay v. Hardwick, 230 Ala. 197, 160 So. 336 (1935).
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AMJUR ADVERSE § 192
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AMJUR ADVERSE § 193
3 Am. JUL 2d Adverse Possession § 193
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
4. Parties to Sales, Grants, and Gifts
Topic Summary Correlation Table References
§ 193, Grantor and grantee or successor of grantee; possession by grantor
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=4, ]0
A.L.R. Library
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353 §§ 3, 8, IS.
Page 396 of 665
Page I
Ordinarily, where a grantor continues in possession of the land after the execution and delivery of the deed,
the possession will be that either of tenant or trustee of the grantee, and the grantor will be regarded as holding
the premises subservient to the grantee.[l) Thus, the occupation of land by a grantor, after conveyance, is pre-
sumed to be under, and in subordination to, the legal title held by the grantee, for the grantor ordinarily is es-
topped by the deed from claiming that the holding is adverse.[2] Further, although the title to land is conveyed
to another, the grantor is entitled to remain in possession, under a reservation of the 1ife estate or similar interest,
such possession will ordinarily be regarded as being under and consonant with the grantor's rights and the
grantee's title, rather than under an independent claim of title hostile to the grantee.[3] However, where a grantor
gives up possession of the major part of the property conveyed but remains in possession of a portion under the
mistaken belief that it was not conveyed, the general rule that a grantor's holding possession after conveyance is
presumptively permissive does not apply.[4]
Observation:
Where, in addition to the grantor-grantee relationship between the parties, it is shown that they were also in a
position of family relationship, some courts have appeared to be especially reluctant to find that an adverse title
arose from the continued occupation and use of the property by the grantor after conveyance. [5]
A grantor who enters onto conveyed land for the first time after the execution of a deed is treated as any
other trespasser and the grantor's period of adverse possession commences when the grantor takes "actual and
visible" possession of the property under a claim of right inconsistent with and hostile to the claim of' the
grantee.[6]
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Page 397 of 665
AMJUR ADVERSE § 193 Page 2
3 Am. Jur. 2d Adverse Possession § 193
The presumption that a grantor's possession of property after its conveyance is subservient to the grantee
obtains only between them and not between the grantor and the grantee's grantees or successors.[7] The reason
for this is that a grantor remaining in possession is presumptively a tenant at the sufferance of the grantee named
in the conveyance and not by the sufferance of some other grantee.[8] Therefore, the presumption does not apply
after the grantee has conveyed the property to a third person.[9] Nor does the presumption apply as between the
grantor or heirs of the grantor and the heirs or devisees of the grantee.[1 0]
[FNI] Miller v. Hewell, 271 Ala. 286, 123 So.2d 126 (1960); Lewicki v. Marszalkowski, 455 A.2d 307
(R.!. 1983); Carterv. Jones, 145 W. Va. 98,112 S.E.2d 705 (1960).
[FN2] Salter v. Cobb, 264 Ala. 609, 88 So. 2d 845 (1956); Stockwell v. Gibbons, 58 Wash. 2d 391, 363
P.2d III (1961).
[FN3] Mahunda v. Thomas, 55 Tenn. App. 470, 402 S.w.2d 485 (1965).
[FN4] Stockwell v. Gibbons, 58 Wash. 2d 391, 363 P.2d III (1961).
[FN5] Frost Lumber Industries v. Harrison, 215 La. 767, 41 So. 2d 674 (1949).
As to effect of family relationship, generally, see §§ 180 et seq.
[FN6] McLaren v. Beard, 811 S.W.2d 564 (Tex. 1991).
[FN7] Walker v. Coley, 264 Ala. 492, 88 So. 2d 868 (1956).
[FN8] Walker v. Coley, 264 Ala. 492, 88 So. 2d 868 (1956).
[FN9] Walker v. Coley, 264 Ala. 492, 88 So. 2d 868 (1956).
[FN I 0] Hutchinson v. Little Four Oil & Gas Co., 275 Pa. 380, 119 A. 534 (1923).
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AMJUR ADVERSE § 193
END OF DOCUMENT
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AMJUR ADVERSE § 194
3 Am. Jur. 2d Adverse Possession § 194
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
4. Parties to Sales, Grants, and Gifts
Topic Summary Correlation Table References
Page 398 of 665
Page I
§ 194. Grantor and grantee or successor of grantee; possession by grantor-When possession becomes hostile
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=4, 10
A.L.R. Library
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353.
A conveyance does not, of itself, prevent the grantor from acquiring title by adverse possession as against
the immediate and remote grantees,[I] and the presumption that the possession of a grantor is subservient to the
grantee may be rebutted.[2] Accordingly, a grantor's possession was adverse where the parties were mistaken as
to the location of the true boundary line.[3] Likewise, the use of a hunting camp property by the grantors for 22
years was hostile and adverse where the grantors intended to and mistakenly believed that they had reserved the
camp property from a conveyance.[4]
[FN I] Walker v. Easterling, 215 Miss. 429, 61 So.2d 163,39 A.L.R.2d 348 (1952).
[FN2] Salter v. Cobb, 264 Ala. 609, 88 So. 2d 845 (1956); Carter v. Jones, 145 W. Va. 98, 112 S.E.2d
705 (1960).
[FN3] Colley v. Carpenter, 172 Ind. App. 638, 362 N.E.2d 163 (1st Disl. 1977).
[FN4] Darling v. Ennis, 138 VI. 311, 415 A.2d 228 (1980).
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AMJUR ADVERSE § 194
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Page 399 of 665
AMJUR ADVERSE § 194
Page 2
3 Am. Jur. 2d Adverse Possession § 194
END OF DOCUMENT
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AMJUR ADVERSE § 195
3 Am. Jur. 2d Adverse Possession § 195
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
4. Parties to Sales, Grants, and Gifts
Topic Summary Correlation Table References
Page 400 of 665
Page I
§ 195. Grantor and grantee or successor of grantee; possession by grantor-Adverse possession by grant-
or; What constitutes hostile possession
West's Key Number Digest
West's Key Number Digest, Adverse Possession <8;:=4, 10
A.L.R. Library
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353.
Under proper circumstances, a grantor may, by adverse possession, acquire title to land which the grantor
has conveyed.[l] Thus, it is well settled that a grantor in permissive possession of land may originate a posses-
sion adverse to the grantee.[2] This is true even though the grantor conveys the land by a general warranty
deed.[3] Where a grantor makes a conveyance, and later corrects such conveyance by a subsequent deed, the
grantor thereafter will be considered in adverse possession of that part of the property which was included in the
original deed but not included in the second conveyance.[4]
Observation:
The adverse possession of a grantor against a grantee differs from that originated by a stranger only in requiring
stronger proof to sustain it.[5]
The hostility of the grantor's holding must be brought to the grantee's attention in such manner as to put the
latter on notice of the grantor's intention to occupy the property in the grantor's own right.[6] Nothing short of an
explicit disclaimer of the subservient relation of a grantor to a grantee and a notorious assertion of right in the
grantor will be sufficient to change the character of the grantor's possession and render it adverse to the grantee.[ 7]
As a rule, open and notorious possession by a grantor will be deemed to be adverse where it is of such char-
acter as to be entirely inconsistent with the rights of the grantee.[8] Where a grantor is not in possession of the
land at the time of the deed, the grantor's actual entry and use of the land thereafter will ordinarily be adverse to
the grantee.[9] Thus, the grantor's entry after conveyance must be deemed to be adverse where there was no
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Page 401 of 665
AMJUR ADVERSE § 195
Page 2
3 Am. Jur. 2d Adverse Possession § 195
evidence that the grantor entered for or under the grantee, and the grantor acted in all respects as the sole owner,
making leases, receiving rents, paying taxes, improving the property, etc.[IO]
On the other hand, evidence of the cultivation or improvement of the land by a grantor after conveyance
does not conclusively establish the hostile nature of possession, and such possession must be deemed permissive
notwithstanding evidence of such acts.[II] That the grantor mortgaged the property after conveyance to the
grantee does not conclusively show hostility.[12] Likewise, the payment of taxes by the grantor remaining in
possession is not conclusive evidence of hostility of a claim, and adverse possession does not arise on evidence
of such payment.[13] A grantor's possession that is permissive, as where the grantor is a tenant and pays rent, is
not adverse and cannot support a claim of adverse possession.[14] That during the period of possession relied
on, the grantor, by acts, declarations, or omissions, recognized a superior title in either the grantee or another,
ordinarily is sufficient to demonstrate that the grantor's possession was not under such claim of right as to ripen
into title.[15]
[FNI] Reinheimer v. Rhedans, 327 S.W.2d 823 (Mo. 1959); Carter v. Jones, 145 W. Va. 98, 112 S.E.2d
705 (1960).
[FN2] Torgerson v. Rose, 339 N.W.2d 79 (N.D. 1983).
When the character of the possession is adequately changed, the grantee must recognize the altered
status, for if the grantee permits the adverse possession to exist without cessation and without challenge
for the statutory period, the grantor maintaining it may be reinvested with the fee. Reinheimer v. Rhe-
dans, 327 S. W.2d 823 (Mo. 1959).
[FN3] Carter v. Jones, 145 W. Va. 98,112 S.E.2d 705 (1960).
[FN4] Fox v. Windes, 127 Mo. 502, 30 S.W. 323 (1895).
[FN5] Fort Wayne Smelting & Refining Works v. City of Fort Wayne, 214 Ind. 454, 14 N.E.2d 556
(1938); Rosenstihl v. Cherry, 114 Ohio st. 401, 4 Ohio L. Abs. 226, 151 N .E. 642 (1926).
[FN6] Skelton v. Lewis, 453 So. 2d 703 (Miss. 1984).
[FN7] Miller v. Hewell, 271 Ala. 286, 123 So. 2d 126 (1960).
As to open, notorious, and visible possession, see §§ 62 et seq.
As to when peImissive possession changes to hostile possession, generally, see § 50.
[FN8] Fort Wayne Smelting & Refining Works v. City of Fort Wayne, 214 Ind. 454, 14 N.E.2d 556
(1938); Great Southern Life Ins. Co. v. Dodson, 155 S.W.2d 379 (Tex. Civ. App. Amarillo 1941).
The presumption against a grantor's adverse possession of land conveyed to the grantee was overcome
by the enclosure, cultivation, and rental of a disputed parcel continuously from the time of the convey-
ance and erection of the fence, even though the fence as erected was mistakenly regarded as the true
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Page 402 of 665
AMJUR ADVERSE § 195 Page 3
3 Am. Jur. 2d Adverse Possession § 195
boundary by all the parties. Lindl v. Ozanne, 85 Wis. 2d 424, 270 N.W.2d 249 (Ct. App. 1978).
[FN9] American Nat. Bank of Beaumont v. Wingate, 266 S. W.2d 934 (Tex. Civ. App. Beaumont 1953),
writ refused n.r.e.
[FNIO] Walkerv. Easterling, 215 Miss. 429, 61 So. 2d 163, 39 A.L.R.2d 348 (1952).
[FNII] Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882 (1946); Bellamy v.
Shryock, 211 Ark. 116, 199 S.W.2d 580 (1947).
[FNI2] Reid v. Reid, 219 Or. 500, 348 P.2d 29 (1959).
[FNI3] Steele v. Steele, 214 Ark. 500, 216 S.W.2d 875 (1949); Hoagland v. Fish, 238 S.W.2d 133 (Ky.
1951).
[FNI4] Walker v. McLaurin, 229 Miss. 425, 90 So. 2d 857 (1956).
[FNI5] Carney v. Loveday, 268 Mich. 640, 256 N.W. 577 (1934).
The grantors of land did not establish adverse possession where, in their deed, they reserved a right of
free use, control and possession of the property for the natural life of their mother and, following the
death of their mother, asked for and obtained permission from the grantee to continue to use the land as
before. Eady v. Eady, 362 So. 2d 830 (Miss. 1978).
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AMJUR ADVERSE § 195
END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 196
3 Am. Jur. 2d Adverse Possession § 196
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
4. Parties to Sales, Grants, and Gifts
Topic Summary Correlation Table References
§ 196. Donor and donee
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>4, 10
A.L.R. Library
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6.
Forms
Page 403 of 665
Page I
Notice of holding adversely under parol gift ofland. IA Am. Jur. Legal Forms 2d, Adverse Possession § II: I O.
Complaint, petition, or declaration-Against executor and devisee-Color of Title-Possession under parol
gift from deceased. IB Am. Jur. Pleading and Practice Forms, Adverse Possession. § 176.
In the absence of a statute otherwise providing, a parol gift of land may ripen into title where accompanied
by actual possession for the statutory period, and under such a gift the donee's possession is adverse from its in-
ception.[I]l! has been recognized that as between a parol donee of land and the donor, or the donor's heirs, the
donee's possession is adverse and need not be notorious to ripen into title.[2] Generally, the execution of a mort-
gage by the donor after entry by the donee will not change the character of the donee's holding, or operate to
suspend the running of the statute of limitations in favor of the donee.[3] However, a different result has been
reached where the parol donee consented to the donor's placing a mortgage on the donated land, or recognized
the validity of such mortgage.[4]
Observation:
It has been said that an entry under a parol gift of land, although permissive and friendly in the popular sense, is
hostile and adverse to the paper title in a legal sense, because there is an assertion of ownership on the part of
the occupant.[5]
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Page 404 of 665
AMJUR ADVERSE § 196 Page 2
3 Am. Jur. 2d Adverse Possession § 196
It has been stated that a claim of title to realty predicated on adverse possession under a parol gift can be es-
tablished only by proof of the coexistence of all essential elements of adverse possession, that is, the possession
must be actual, hostile, open, notorious, and visible, continuous, exclusive, and under a claim of right for the
statutory period.[6] Thus, under the particular facts involved, a parol donee's possession of land may be held not
to be hostile in character.[7]
Reminder:
In jurisdictions in which the particular statute governing the acquisition of title by adverse possession requires
written evidence of title as color,[8] a parol gift ofland may not ripen into title under adverse possession.[9]
[FNI] Ramey v. Ramey, 353 S.W.2d 191 (Ky. 1962); Southern Reynolds Counry School Dis!. R-2 v.
Callahan, 313 S.W.2d 35 (Mo. 1958).
[FN2] Tenney v. Luplow, 103 Ariz. 363,442 P.2d 107 (1968).
[FN3] Harrelson v. Reaves, 219 S.C. 394,65 S.E.2d 478, 43 A.L.R.2d I (1951).
[FN4] Potter v. Smith, 68 Mich. 212, 35 N.W. 916 (1888).
[FN5] Harrelson v. Reaves, 219 S.C. 394,65 S.E.2d 478, 43 A.L.R.2d I (1951).
[FN6] Philbin v. Carr, 75 Ind. App. 560, 129 N.E. 19 (1920).
As to requisite coexistence of all elements of adverse possession, generally, see § 10.
[FN7] Gregoire v. Redwood City Elementary School Dis!., 174 Cal. App. 2d 667,345 P.2d 99 (1st Dis!.
1959).
[FN8] §§ 123 et seq.
[FN9] Philbin v. Carr, 75 Ind. App. 560, 129 N.E. 19 (1920).
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AMJUR ADVERSE § 196
END OF DOCUMENT
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AMJUR ADVERSE § 197
3 Am. Jur. 2d Adverse Possession § 197
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
5. Landlord and Tenant
Topic Summary Correlation Table References
§ 197, Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£;=4, 10
West's Key Number Digest, Landlord and Tenant <£;=14, 16
A.L,R. Library
Page 405 of 665
Page I
Adverse possession of landlord as affected by tenant's recognition of title of third person, 38 A.L.R. 2d 826
§§ 2 et seq.
Forms
Reply-Denial-Possession with consent of plaintiff-owner-Landlord-tenant relationship. I BAm. Jur.
Pleading and Practice Forms, Adverse Possession § 181.
The rule is well-settled that during the existence of the relation of landlord and tenant, a tenant is estopped
to deny the landlord's title or to challenge or dispute it.[ I] A tenant can in no case contest the right of the land-
lord to possession, or defend such tenant by any claim or title adverse to the landlord during the time which the
statute has to run.[2]
Observation:
This is merely one application of the rule that a tenant cannot deny the landlord's title.[3]
The possession of a tenant is not deemed adverse to the landlord unless there has been a clear repudiation by
the tenant holding under the landlord, with notice of such repudiation brought home to the landlord.[4] The ad-
verse conduct on the part of the tenant necessarily furnishes the landlord with the legal right to enter and repos-
sess the premises.[ 5]
Observation:
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Page 406 of 665
AMJUR ADVERSE § 197 Page 2
3 Am. Jur. 2d Adverse Possession § 197
The rule that a tenant may initiate adverse possession which will eventually ripen into title by means of which
the tenant may resist the landlord's claim for possession or rent is not in contlict with the rule that a tenant is es-
topped to deny the landlord's title. The estoppel rule merely prevents the setting up of a title inconsistent with
that of the landlord at the commencement of the tenancy. The title acquired by the tenant by adverse possession
for the statutory period after disclaimer of the landlord's title is not inconsistent with that title, but is based on
the assumption that such title has been extinguished. The adverse holding by the tenant does not, until the expir-
ation of the full statutory period, confer any rights on the tenant, or relieve the tenant of any of the obligations
incident to tenancy.[6]
Also as a general rule, the attornment of the tenant of an adverse claimant to the true owner will not affect
the adverse possession of the original landlord,[7] at least where the owner knows of the landlord's claim and the
landlord is ignorant of the tenant's action.[8]
[FNI]49 Am. Jur. 2d, Landlord and Tenant § 915.
[FN2] Peyton v. Stith, 30 U.S. 485,8 L. Ed. 200 (\831).
As to whether the actual possession generally necessary to acquire title by adverse possession may be
effected through a tenant, see § 23.
As to tenant's acquisition of interests adverse to the landlord, see 49 Am. Jur. 2d, Landlord and Tenant
§§ 930, 931.
[FN3] Missouri Pac. R. Co. v. Bozeman, 178 Ark. 902, 12 S.W.2d 895 (\929); Burroughs v. Smith, 8
S. W.2d 30 I (Tex. Civ. App. Austin 1928), writ dismissed w.oj., (Jan. 30, 1929).
[FN4] § 199.
[FN5] Gee v. Hatley, 114 Ark. 376, 170 S.W. 72 (\914); Burroughs v. Smith, 8 S.W.2d 301 (Tex. Civ.
App. Austin 1928), writ dismissed w.oj., (Jan. 30, 1929).
[FN6] Peyton v. Stith, 30 U.S. 485, 8 L. Ed. 200 (\831).
[FN7] Kirby Lumber Corp. v. Laird, 231 F.2d 812 (5th Cir. 1956); Satterfield v. Peterson, 173 Neb.
618,114 N.W.2d 376 (1962).
[FN8] Kimble v. Willey, 204 F.2d 238,38 A.L.R.2d 814 (8th Cir. 1953) (applying Arkansas law).
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AMJUR ADVERSE § 197
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AMJUR ADVERSE § 198
3 Am. Jur. 2d Adverse Possession § 198
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
5. Landlord and Tenant
Topic Summary Correlation Table References
§ 198. When possession of tenant becomes hostile
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=4, 10
West's Key Number Digest, Landlord and Tenant €=14, 16
Forms
Page 1
Form drafting guide-Checklist-Matters to consider when drafting an affidavit respecting adverse posses-
sion. IA Am. Jur. Legal Forms 2d, Adverse Possession § 11:17.
Affidavit-Disclaimer of title-By tenant. IA Am. Jur. Legal Forms 2d, Adverse Possession § II: 18.
Although the rule is well settled that so long as the relation of landlord and tenant exists, the tenant cannot
acquire an adverse title as against the landlord,[I] it is equally well settled that one who enters as tenant is not,
merely because of that fact, precluded from subsequently holding adversely to the landlord.[2] To do so,
however, it is necessary that the tenant renounce the idea of holding as tenant, and set up and assert an exclusive
right in him or herself.[3] It is also essential that the landlord should have actual notice of the tenant's claim, or
that the tenant's acts of ownership should be of such open, notorious, and hostile character that the landlord must
have known of it.[4] If a tenant has remained in possession under a claim of title for the statutory period, the au-
thorities agree that the tenant is not estopped to assert title to the property.[S] In other words, a tenant may oust
the landlord and hold adversely, and, after notice of such adverse holding, the landlord's title may be barred by
the continued adverse holding.[6]
Observation:
The rule permitting adverse holding by a tenant is generally recognized even though the tenancy was for a term
of years and the term has not expired at the time of the disclaimer of the landlord's title, which disclaimer oper-
ates as a forfeiture of the tenn and authorizes the landlord to recover the possession, and therefore, the adverse
holding commences as soon as the landlord has notice of the disclaimer and adverse claim, although the term
has not expired.[7] Other cases, however, apparently deny the power of a tenant to initiate adverse possession
during the term of a lease.[8]
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Page 408 of 665
AMJUR ADVERSE § 198 Page 2
3 Am. JUL 2d Adverse Possession § 198
Adverse title to property held under a lease may be secured by possession for the requisite period under a
decree in partition which treats the tenant's title as a fee.[9]
[FNI]§197.
[FN2] Worthen v. Rushing, 228 Ark. 445, 307 S.W.2d 890 (1957).
As to when pennissive possession becomes adverse, generally, see § 50.
As to possession of tenant becoming adverse to landlord, see 49 Am. JUL 2d, Landlord and Tenant §§
931,932.
[FN3] Worthen v. Rushing, 228 Ark. 445, 307 S.W.2d 890 (1957).
[FN4] Worthen v. Rushing, 228 Ark. 445, 307 S.W.2d 890 (1957).
[FN5] Peyton v. Stith, 30 U.S. 485, 8 L. Ed. 200 (1831).
[FN6] Zeller's Lessee v. Eckert, 45 U.S. 289,4 How. 289, II L. Ed. 979 (1846).
[FN7] Walden v. Bodley, 39 U.S. 156, 10 L. Ed. 398 (1840).
[FN8] Zeller's Lessee v. Eckert, 45 U.S. 289, 4 How. 289, II L. Ed. 979 (1846).
[FN9] Townsend v. Boyd, 217 Pa. 386, 66 A. 1099 (1907).
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AMJUR ADVERSE § 198
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AMJUR ADVERSE § 199
3 Am. Jur. 2d Adverse Possession § 199
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
5. Landlord and Tenant
Topic Summary Correlation Table References
Page 409 of 665
Page I
§ 199. When possession of tenant becomes hostile--Sufficiency of disclaimer and notice of hostile holding
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=>4, 10
West's Key Number Digest, Landlord and Tenant C=>14, 16
A.L.R. Library
Grantor's possession as adverse possession against grantee, 39 A.L.R. 2d 353 § 12 (payment or nonpayment
of rent by grantor).
Acts of exclusive ownership by the tenant must be made manifest to the landlord in some way.[I] The mere
fact that a tenant remains in possession after the expiration of the tenn, without any express repudiation of the
relation created by the lease, is insufficient to show that the tenant holds adversely to landlord, even though the
tenant may secretly intend to do so.[2] Nor can an adverse possession by the tenant be predicated on the failure
to pay rent,[3] unless, in connection therewith, the landlord has been notified that the tenant claims title.[4]
[FN1] lunkerrnann v. Carruth, 620 S.W.2d 165 (Tex. Civ. App. Corpus Christi 198\).
[FN2] Carson v. Broady, 56 Neb. 648, 77 N.W. 80 (1898).
[FN3] Smith v. Newman, 62 Kan. 318,62 P. lOll (1900).
[FN4] Greenwood v. Moore, 79 Miss. 201, 30 So. 609 (1901); Ross v. McManigal, 61 Neb. 90, 84
N.W. 610 (1900).
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AMJUR ADVERSE § 199
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AMJURADVERSE § 199 Page 2
3 Am. Jur. 2d Adverse Possession § 199
END OF DOCUMENT
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AMJUR ADVERSE § 200
3 Am. Jur. 2d Adverse Possession § 200
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
5. Landlord and Tenant
Topic Summary Correlation Table References
§ 200. Possession under tenant
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=4, 10
West's Key Number Digest, Landlord and Tenant €:=14, 16
Page 411 of665
Page I
The possession of one entering under a tenant is as a general rule regarded as subservient and not adverse to
the landlord to the same extent as that of the tenant, and placed in the shoes of the tenant, the occupant is bound
by the allegiance a tenant owes a landlord and cannot disclaim such allegiance without notice to the landlord.[I]
However, where one enters under a tenant without knowledge of the tenancy, and irrespective of it, in the asser-
tion of a title on its face adverse to the lessor, the possession will be hostile, if unequivocal acts and declarations
manifest an intention to hold against all others.[2]
CUMULATIVE SUPPLEMENT
Cases:
Evidence that lessees stopped making lease payments was insufficient to establish that they clearly, posit·
ively, and continuously disavowed lessor's title with lessor's knowledge, in lessees' action to quiet title by ad-
verse possession; lessees were required to establish that they took affirmative steps to repudiate lessor's title,
which they did not do, lessees' use of land remained essentially the same the entire time, and they did not dis-
avow lessor's ownership when to do so would have been consistent with their claim of adverse possession.
Hutchinson v. Taft, 2010 WY 5, 222 P.3d 1250 (Wyo. 2010).
[END OF SUPPLEMENT[
[FNI] Missouri Pac. R. Co. v. Bozeman, 178 Ark. 902, 12 S.W.2d 895 (1929); Burroughs v. Smith, 8
S.W.2d 301 (Tex. Civ. App. Austin 1928), writ dismissed w.o.j., (Jan. 30,1929).
[FN2] Gee v. Hatley, 114 Ark. 376, 170 S.W. 72 (1914); Burroughs v. Smith, 8 S.W.2d 301 (Tex. Civ.
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Page 412 of665
AMJUR ADVERSE § 200 Page 2
3 Am. Jur. 2d Adverse Possession § 200
App. Austin 1928), writ dismissed w.o.j., (Jan. 30,1929).
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AMJUR ADVERSE § 200
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AMJUR ADVERSE § 201
3 Am. Jur. 2d Adverse Possession § 201
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
a. In General; As between Cotenants
Topic Summary Correlation Table References
§ 201. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession €;=4, 10
West's Key Number Digest, Joint Tenancy €;=9
A.L.R. Library
Adverse possession between cotenants who are unaware of cotenancy, 27 A.L.R. 4th 420.
Adverse possession between cotenants, 82 A.L.R. 2d 5.
Adverse possession under parol gift of land, 43 A.L.R. 2d 6 §§ 8, 10 (under parol gift).
Page 413 of665
Page I
The general principle is that there is a relation of trust between cotenants, each having an equal right of
entry and possession.[l] Thus, every cotenant has the right to enter into and occupy the common property and
every part thereof, provided in so doing the cotenant does not exclude fellow cotenants or otherwise deny them
some right to which they are entitled as cotenants; and the other tenants, on their part, may safely assume, until
something occurs of which they must take notice, and which indicates the contrary, that the possession taken is
held as a cotenant and is, in law, the possession of all cotenants.[2] This proposition is based on the supposition
that the entry is made either eo nomine as a cotenant, or that it is silently made, without any particular avowal in
regard to it, or without notice to a cotenant that it is adverse.[3] In the absence of facts showing that one coten-
ant in sole possession holds such possession in opposition to the rights of other cotenants, the occupancy will be
presumed to be that of a cotenant,[4] and it is further presumed that one tenant in common holds property for the
benefit of the others.[S] Accordingly, possession by one cotenant is lawful and is not adverse to the other coten-
ants in the absence of some repudiation, notice of an adverse claim, or ouster.[6] Indeed, the presumption is
strongly against every claim by a cotenant who seeks to convert the circumstance of an apparently individual
possession into an advantage over associates.[7]
Observation:
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Page 414 of665
AMJUR ADVERSE § 201 Page 2
3 Am. Jur. 2d Adverse Possession § 20 I
Although there is considerable confusion in the cases as to whether there can be adverse possession by a coten-
ant where the possessor or a cotenant or both are ignorant of the cotenancy, on principle it would seem that one
who holds sale possession of premises as the exclusive owner has a possession which is adverse to the whole
world, including a cotenant out of possession whether either or both were ignorant of the cotenancy, and accord-
ingly, in a number of cases possession has been deemed adverse although both parties were unaware of the
cotenancy.[8] although there is authority to the contrary.[9]
Ordinarily, jf a possessor takes sole possession of the premises as exclusive owner prior to the time the
cotenancy arises, the continued sole possession under a claim of exclusive ownership after the cotenancy arises
is adverse to the cotenants.[1 0]
CUMULATIVE SUPPLEMENT
Cases:
When detennining whether cotenant's possession is adverse to other cotenants, for purposes of adverse pos-
session, relationship of the parties, their reasonable access to the property and opportunity or necessity for deal-
ing with it, their right to rely upon conduct and assurances of the tenant in possession, kinship, business transac-
tions directly or incidentally touching the primary subject matter, silence when one should have spoken, natural
inferences arising from indifference, and other means of conveying or concealing intent may be important in a
particular case, but not controlling in another; what a designated plaintiff or defendant had in mind when he or
she consummated an act or engaged in a course of conduct often depends upon the personal equation and the in-
dividual's method of expression, and there can therefore be no "open and shut" rule by which purpose can be
measured. Sherman v. Wallace, 88 Ark. App. 229,197 S.W.3d 10 (2004).
[END OF SUPPLEMENT]
[FNI]20 Am. Jur. 2d, Cotenancy and Joint Ownership § 2.
[FN2] Barry v. Thomas, 273 Ala. 527, 142 So. 2d 918 (1962); Hare v. Chisman, 230 Ind. 333, 101
N.E.2d 268 (1951).
The mere possession by one tenant in common who receives an the rents and profits and pays the taxes
assessed against the property, no matter for how long a period, cannot be set up as a bar against the
cotenants, and in such case, the possession of one tenant in common is in contemplation of law the pos-
session of all tenants in common. Mercer v. Wayman, 9 Ill. 2d 441,137 N.E.2d 815 (1956).
A tenant in common, claiming as such, who enters on the common land, is exercising the right given
him or her by the title to the property, and the tenant's resulting possession is presumed to be consistent
with the avowed title and therefore to be the possession of the cotenant and him or herself. Smith v.
Tremaine, 221 Or. 33, 350 P.2d 180,82 A.L.R.2d I (1960).
[FN3] Eckhardt v. Eckhardt, 43 Tenn. App. 1,305 S.W.2d 346 (1957).
[FN4] Cook v. Rochford, 60 So. 2d 531, 32 A.L.R.2d 1210 (Fla. 1952); Hoverson v. Hoverson, 216
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Page 415 of665
AMJURADVERSE § 201 Page 3
3 Am. Jur. 2d Adverse Possession § 201
Minn. 228,12 N.W.2d 501 (l943).
[FN5] Porter v. Marx, 179 A.D.2d 962,579 N.Y.S.2d 219 (3d Dep't 1992).
[FN6] Evans v. Covington, 795 S.W.2d 806 (Tex. App. Texarkana 1990).
[FN7] Marshall v. Callahan, 241 Mo. App. 336, 229 S. W.2d 730 (1950).
There is a strong presumption against every supposition that a cotenant in sole possession is holding the
premises in opposition to the rights of cotenants. Hare v. Chisman, 230 Ind. 333, 101 N.E.2d 268 (l951).
[FN8] Brown v. Phillips Petroleum Co., 144 S.W.2d 358 (Tex. Civ. App. Fort Worth 1940).
[FN9] Denton v. Denton, 627 S.W.2d 124,27 A.L.RAth 413 (Tenn. C!. App. 1981).
[FNIO] Anderson v. Shelton, 92 N.W.2d 166,73 A.L.R.2d 1087 (N.D. 1958).
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AMJUR ADVERSE § 201
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AMJUR ADVERSE § 202
3 Am. Jur. 2d Adverse Possession § 202
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
a. In General; As between Cotenants
Topic Summary Correlation Table References
§ 202, When possession becomes hostile
West's Key Number Digest
West's Key Number Digest, Adverse Possession 1€>4, 10
West's Key Number Digest, Joint Tenancy 1€>9
A.L.R Library
Adverse possession between cotenants who are unaware of cotenancy, 27 A.L.R. 4th 420.
Adverse possession between cotenants, 82 A.L.R. 2d 5.
Page 416 of665
Page I
The presumption that one tenant in common holds property for benefit of others can be rebutted by a show-
ing of adverse possession.[I] The presumption that the possession of a cotenant is not hostile to other cotenants[
2] continues until a possession legally adverse to the possessor's cotenants is established.[3] To terminate the
presumption, there must be some hostile act, conduct, or declaration on the part of the possessor amounting to a
repudiation of cotenants' rights and an assertion of exclusive title in the possessor, of which the cotenants have
knowledge or notice.[4] The statute of limitations begins to run in favor of a cotenant in possession against a
cotenant out of possession trom the time there is an ouster of the latter by the former.[5]
Where once it appears that the party occupying the premises holds not in recognition of, but in hostility to,
the rights of cotenants, the possession ceases to amount to constructive possession by them, becomes adverse,
and, if maintained for the period provided for by the statute of limitations, will vest in the possessor a sole title
by adverse possession to the premises.[6]
Reminder:
When ousted by a fellow cotenant, the others have a remedy in their own right, on their own independent title,
and if they do not exercise their right they must suffer the consequences of an adverse possession and lose their
estate.[7]
CUMULA TIVE SUPPLEMENT
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Page 417 of 665
AMJUR ADVERSE § 202 Page 2
3 Am. Jur. 2d Adverse Possession § 202
Cases:
The statutory period of time for an adverse possession claim by a cotenant does not begin to run until know-
ledge of the adverse claim has been brought home to other cotenants directly or by such notorious acts of an un-
equivocal character that notice may be presumed. Sherman v. Wallace, 88 Ark. App. 229, 197 S.W.3d 10 (2004) .
lEND OF SUPPLEMENT)
[FNI] Porter v. Marx, 179 A.D.2d 962,579 N.Y.S.2d 219 (3d Dep't 1992).
[FN2) § 20 I.
[FN3] Franks Petroleum, Inc. v. Babineaux, 446 So. 2d 862 (La. Ct. App. 2d Cir. 1984).
[FN4] Barry v. Thomas, 273 Ala. 527, 142 So. 2d 918 (1962); Linebarger v. Late, 214 Ark. 278, 216
S.W.2d 56 (1948); Cary-Glendon Coal Co. v. Warren, 303 Ky. 846, 198 S.W.2d 499 (1946).
Possession of a cotenant does not become adverse to other cotenants unless notice is given that the first
cotenant was claiming land adversely to the cotenants, or the first cotenant's acts in assertion of the ad-
verse claim are of such unequivocal notoriety as to charge them with such notice. Evans v. Covington,
795 S. W.2d 806 (Tex. App. Texarkana 1990).
[FN5] Fallon v. Davidson, 137 Colo. 48, 320 P.2d 976 (1958); Hare v. Chisman, 230 Ind. 333, 101
N.E.2d 268 (1951).
[FN6] Smith v. Tremaine, 221 Or. 33, 350 P.2d 180, 82 A.L.R.2d I (1960).
A cotenant may hold adversely to the cotenants if possession is such that it meets the requirements of
the law of adverse possession. Simons v. Tancre, 321 N.W.2d 495 (N.D. 1982).
[FN7] Koch v. Krueger, 149 Kan. 123,86 P.2d 526 (1939).
As to ejectment or trespass to try title action as maintainable by one cotenant against another cotenant
holding adversely, see 20 Am. Jur. 2d, Cotenancy and Joint Ownership § 94.
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AMJUR ADVERSE § 202
END OF DOCUMENT
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AMJUR ADVERSE § 203
3 Am. Jur. 2d Adverse Possession § 203
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
a. In General; As between Cotenants
Topic Summary Correlation Table References
§ 203. What constitutes hostile possession
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=4, 10
West's Key Number Digest, Joint Tenancy €:=9
A.L.R. Library
Adverse possession between cotenants who are unaware of cotenancy, 27 A.L.R. 4th 420.
Adverse possession between cotenants, 82 A.L.R. 2d 5.
Page 418 of665
Page I
The possession of a cotenant may become hostile if by acts and conduct the possessor disseises the coten-
ants by repudiating their title and claiming adversely to them.[I] The possession is not hostile unless there exists
in the mind of the possessor the intent and determination to hold the premises for the possessor as of the time in
question as well as for the future, and to the exclusion of cotenants (or some of them), so as to render the exist-
ing possession hostile in fact.[2] Moreover, notice to the disseised cotenants of the repudiation of their rights
must be brought home to them.[3] The mere intention of a cotenant, unannounced, is not sufficient to support a
claim of adverse title.[ 4] The establishment of adverse possession between cotenants depends primarily on the
intent and conduct of the possessor, rather than on the intent of other cotenants.[5] An adverse claim by a coten-
ant against fellow cotenants cannot be established by inference.[6]
Observation:
In determining the sufficiency of an adverse claim by a cotenant, courts generally look to the totality of the cir-
cumstances, considering such factors as the relationship of the parties, the reasonable access to the property and
opportunity or necessity for dealing with it, the right to rely on conduct and assurances of the cotenant in posses-
sion, kinship, business transactions directly or incidentally touching the primary subject matter, silence when
one should have spoken, and natural inferences rising from indifference.[7] Where there is a family relation
between cotenants, stronger evidence of adverse possession is required than where no such relation exists.[8]
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Page 419 of665
AMJUR ADVERSE § 203 Page 2
3 Am. Jur. 2d Adverse Possession § 203
[FNI] Mercer v. Wayman, 9 Ill. 2d 441, 137 N.E.2d 815 (1956); Replogle v. Replogle, 350 S.W.2d 735
(Mo. 1961).
As to what constitutes ouster or exclusion of one cotenant by another, see 20 Am. Jur. 2d, Cotenancy
and Joint Ownership § 5l.
[FN2] Reed v. Bachman, 61 W. Va. 452, 57 S.E. 769 (1907).
[FN3] § 206.
[FN4] Cary-Glendon Coal Co. v. Warren, 303 Ky. 846, 198 S.W.2d 499 (1946).
[FN5] Wilson v. Wilson, 250 Ky. 247, 62 S.W.2d 572 (1933).
[FN6] Mercer v. Wayman, 9 Ill. 2d 441,137 N.E.2d 815 (1956).
[FN7] Hirsch v. Patterson, 269 Ark. 532, 601 S.W.2d 879 (1980).
[FN8] McGuire v. Wallis, 231 Ark. 506,330 S.W.2d 714 (1960).
As to effect of family relationship, generally, see §§ 180 et seq.
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rights reserved.
AMJUR ADVERSE § 203
END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 204
3 Am. JUL 2d Adverse Possession § 204
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
a. In General; As between Cotenants
Topic Summary Correlation Table References
§ 204. What constitutes hostile possession-Ouster of cotenants
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 4 , 10
West's Key Number Digest, Joint Tenancy ~ 9
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5.
Adverse possession under parol gift ofland, 43 A.L.R. 2d 6 § 1O[(c1].
Forms
Page 420 of 665
Page I
Instruction to jury-Cotenants-Necessity for ouster or notice. 1B Am. Jur. Pleading and Practice Forms,
Adverse Possession § 183.
Before the possession of one tenant in common can be adverse to the other cotenants there must be a dis-
seisin or ouster by some outward act of ownership of an unequivocal character, overt or notorious, and of such
nature as to impart information and notice to the cotenants that an adverse possession and disseisin are intended
to be asserted by the tenant in possession.[I] A parent in cotenancy with children may acquire title as against
them by adverse possession by an ouster from possession of a living spouse that continues against the heirs of
the spouse.[2] The acts relied on to establish an ouster must be of an unequivocal nature and so distinctly hostile
to the rights of the other cotenants that the intention to disseise is clear and unmistakable.[3]
Practice Guide:
While an ouster of one cotenant by another is produced by acts of the same general character as will produce any
other ouster,[4] evidence of hostile occupancy by a cotenant must be stronger than that which would be required
to establish a title by adverse possession in a stranger.[5] Thus, proof of ouster of a cotenant by another must be
stronger than in the case of strangers.[ 6]
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Page 421 of 665
AMJUR ADVERSE § 204 Page 2
3 Am. Jur. 2d Adverse Possession § 204
In order that one of several cotenants may acquire title by adverse possession as against the others, the pos-
session also must be of such actual, open, notorious, and exclusive character as to amount to an ouster of the
other cotenants.[7] The open, notorious, continuous, and exclusive possession by one cotenant with the use and
exercise of authority incident to exclusive ownership may presume ouster,[8] although the mere possession[9] or
mere use and occupation of the land by a cotenant will not ordinarily constitute ouster.[IO] Thus, mere exclusive
possession, accompanied by no act that can amount to an ouster of the other cotenant, will not be held to amount
to a disseisin of such cotenant.[ II]
CUMULATIVE SUPPLEMENT
Cases:
Before title may be acquired by adverse possession as between cotenants, the occupying tenant must impart
notice to the tenant out of possession, by acts of ownership of the most open, notorious and unequivocal charac-
ter, that he or she intends to oust the latter of his or her interest in the common property; such evidence must be
stronger than that which would be required to establish a title by adverse possession in a stranger, and mere ex-
clusive possession is not sufficient. Preciado v. Wilde, 139 Cal. App. 4th 321, 42 Cal. Rptr. 3d 792 (2d Dist.
2006), review denied, (Aug. 16,2006).
lEND OF SUPPLEMENTI
[FNI] Mercer v. Wayman, 9 Ill. 2d 441, 137 N.E.2d 815 (1956).
In addition to triggering an obligation to pay rent, an ouster furnishes the tenant in possession a benefit,
since it starts the time in which the tenant in possession will hold the property adversely, and the ouster
by one cotenant of others can result in the tenant in possession obtaining title to the property, if the oc-
cupying tenant otherwise satisfies the requirements for title by adverse possession. Estate of Hughes, 5
Cal. App. 4th 1607,7 Cal. Rptr. 2d 742 (4th Dist. 1992).
[FN2] Ruick v. Twarkins, 171 Conn. 149,367 A.2d 1380 (1976).
[FN3] Baker v. Clowser, 158 Iowa 156, 138 N.W. 837 (1912); Ferenbaugh v. Ferenbaugh, 104 Ohio st.
556,136 N.E. 213 (1922).
[FN4] Harjo's Heirs v. Standley, 1956 OK 286, 305 P.2d 864 (Okla. 1956).
As to ouster of owner, generally, see §§ 69, 70.
[FN5] Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695 (1956).
[FN6] Wilkerson v. Thomas, 121 Cal. App. 2d 479, 263 P.2d 678 (2d Dist. 1953); Smith v. Lemp, 31
Del. Ch. 1,63 A.2d 169 (1949).
An ouster cannot be proved merely by acts which are consistent with an honest intent to acknowledge
the rights of the cotenants. Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625 (1954),
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Page 422 of 665
AMJUR ADVERSE § 204 Page 3
3 Am. Jur. 2d Adverse Possession § 204
error overruled, 222 Miss. 207, 78 So. 2d 471 (1955).
[FN7] Watson v. Little, 224 S.C. 359, 79 S.E.2d 384 (1953); Brevard v. Fortune, 221 S.c. 117, 69
S.E.2d 355 (1952).
[FN8] Wells v. Coursey, 197 S.C. 483, 15 S.E.2d 752 (1941); Eckhardt v. Eckhardt, 43 Tenn. App. I,
305 S.W.2d 346 (1957).
[FN9] Smith v. Lemp, 31 Del. Ch. 1,63 A.2d 169 (1949).
[FNIO] Fallon v. Davidson, 137 Colo. 48, 320 P.2d 976 (1958).
[FNI1] Hare v. Chisman, 230 Ind. 333,101 N.E.2d 268 (1951).
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AMJUR ADVERSE § 204
END OF DOCUMENT
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AMJUR ADVERSE § 205
3 Am. Jur. 2d Adverse Possession § 205
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
a. In General; As between Cotenants
Topic Summary Correlation Table References
§ 205. What constitutes hostile possession-Sufficiency of ouster
West's Key Number Digest
West's Key Number Digest, Adverse Possession €;=4, 10
West's Key Number Digest, Joint Tenancy €;=9
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5.
Page 423 of 665
Page I
It is not always easy to detel11line what acts amount to an ouster, and while a physical ouster, or "turning out
by the heels," as some of the judges have termed it, is not necessary in establishing title in a cotenant in by ad·
verse possession,[l] nevertheless, an ouster or its equivalent and an exclusion of the other cotenants from pos-
session must be shown.[2] Several courts have said that the tenn "ouster" may denote either an actual turning
out or an exclusive possession coupled with some act amounting to a total denial of the other's rights.[3]
Observation:
In order to afford the basis of title by adverse possession, ouster need not extend to all property of the cotenants
or to the whole of any tract claimed by them. It may be restricted to a part of a tract and result in the acquisition
of adverse title thereto.[4]
[FNI] Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625 (1954), error overruled, 222
Miss. 207, 78 So. 2d 471 (1955).
[FN2] Curtis v. Barber, 131 Iowa 400, 108 N.W. 755 (1906); Susquehanna Transmission Co. of Md. v.
St. Clair, 113 Md. 667, 77 A. 1119 (19\0).
[FN3] Hed v. Pullara, 128 Colo. 244, 261 P.2d 509 (1953).
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Page 424 of 665
AMJUR ADVERSE § 205 Page 2
3 Am. Jur. 2d Adverse Possession § 205
[FN4] Stevenson v. Anderson, 87 Ala. 228, 6 So. 285 (1889).
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AMJUR ADVERSE § 205
END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 206
3 Am. J ur. 2d Adverse Possession § 206
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
a. In General; As between Cotenants
Topic Summary Correlation Table References
§ 206. What constitutes hostile possession-Requirement of actual knowledge of hostile claim
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=o;>4, 10
West's Key Number Digest, Joint Tenancy €=o;>9
A.L.R. Library
Adverse possession between cotenants who are unaware of cotenancy, 27 A.L.R. 4th 420.
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 50 et seq.
Page 425 of 665
Page I
Cotenants in possession who claim adversely are required to prove either that they or their predecessors in
interest gave actual notice to other cotenants or their predecessors that the claimants' possession was hostile to
them, or that the requirement of notice was eliminated by exceptional circumstances, such as that the cotenants
out of possession had knowledge trom other sources that the property was claimed adversely.[I] Thus, it is de·
c1ared in many cases that before the possession of a cotenant can become adverse to cotenants the latter must
have knowledge that the possessor is claiming exclusive ownership and is holding the premises adversely to
them,[2] and adverse possession is not established where a cotenant out of possession is never informed of a
claim against that tenant's interest.[3]
Mere knowledge by cotenants out of possession of the obvious fact of possession by one cotenant does not
amount to proof of knowledge that the one in possession was claiming adversely.[4] Thus, an entry on real prop·
erty by a cotenant claiming an adverse possession against other cotenants can never become the foundation of
title until the other cotenants first have had actual knowledge of the repudiation of their rights.[5] There must be
an express denial by the cotenant in sole possession of the title or right to possession of a fellow cotenant
brought home to the knowledge of the latter.[6]
Caution:
The requirement of actual knowledge by other cotenants of the repudiation of their rights is particularly applic-
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Page 426 of 665
AMJUR ADVERSE § 206 Page 2
3 Am. Jur. 2d Adverse Possession § 206
able where there is a family or blood relationship or other elements of trust and confidence between the coten-
ants.[7]
CUMULATIVE SUPPLEMENT
Cases:
Since possession by a cotenant is not ordinarily adverse to other cotenants, each having an equal right to
possession, a cotenant, for purposes of adverse possession, must give actual notice to other cotenants that his
possession is adverse to their interests or commit sufficient acts of hostiJity so that their knowledge of his ad-
verse claim may be presumed. Sherman v. Wallace, 88 Ark. App. 229,197 S.W.3d 10 (2004).
lEND OF SUPPLEMENTI
[FNI] City and County of Honolulu v. Bennett, 57 Haw. 195,552 P.2d 1380 (1976).
As to sufficiency of constructive notice of adverse occupancy by a cotenant, see § 207.
[FN2] Draper v. Sewell, 263 Ala. 250, 82 So. 2d 303 (1955).
A cotenant had actual notice of an adverse claim to a property in its entirety where the cotenant testified
to knowing that another cotenant and her husband were living on and claiming the property as their own
for a period of years. Mosley v. Clark, 362 So. 2d 615 (Miss. 1978).
[FN3] Steele v. Mack, 341 So.2d 1322 (Miss. 1977).
[FN4] Mercer v. Wayman, 9 Ill. 2d 441, 137 N.E.2d 815 (1956).
[FN5] Holbrook v. Carter, 19 Utah 2d 288, 431 P.2d 123 (1967).
The rule does not apply to a coheir whose adverse possession commenced before the decedent's death.
Anderson v. Shelton, 92 N.W.2d 166, 73 A.L.R.2d 1087 (N.D. 1958).
[FN6] Hirsch v. Patterson, 269 Ark. 532,601 S.W.2d 879 (1980).
Although a cotenant exercised the use of the land, paid taxes, redeemed the land when it was sold for
taxes, cut timber and grazed cattle thereon, executed oil and gas leases, and obtained homestead exemp-
tions, without accounting for rents and profits to the cotenants or requesting contributions from them,
there was no ouster since a specific notice of adverse possession had not been given. Campbell v.
Dedeaux, 386 So. 2d 713 (Miss. 1980).
[FN7] Baxter v. Young, 229 Ark. 1035,320 S.W.2d 640 (1959).
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Page 427 of 665
AMJUR ADVERSE § 206
Page 3
3 Am. Jur. 2d Adverse Possession § 206
AMJUR ADVERSE § 206
END OF DOCUMENT
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Westlaw"
AMJUR ADVERSE § 207
3 Am. Jur. 2d Adverse Possession § 207
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
a. In General; As between Cotenants
Topic Summary Correlation Table References
§ 207. What constitutes hostile possession-Sufficiency of constructive notice of hostile claim
West's Key Number Digest
West's Key Number Digest, Adverse Possession <C=4, 10
West's Key Number Digest, Joint Tenancy <C=9
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5 §§ 50 et seq.
Page 428 of 665
Page I
The doctrine of many cases and the prevailing rule is that the possession may be legally adverse to the pos-
sessor's cotenants although they do not have actual knowledge of the fact of adverse possession.[I] Actual notice
of an adverse claim may not be necessary when a cotenant's use and claim of title are so long continued, open,
notorious and exclusive as to raise an inference that notice has been brought to the attention of the cotenant, but
it is only when those facts are inconsistent with the existing title in others that such inference will be raised.[2]
On the other hand, the knowledge of the hostile attitude of the possessor is not to be presumed, but must be
shown by such proof as will preclude all doubt of knowledge on the part of the cotenant who is out of posses-
sion.[3] In any event, notice of the adverse possession must be clearly brought home to the cotenants out of pos-
session.[4]
The knowledge chargeable to cotenants out of possession may arise from a disavowal or disclaimer by the
adverse possessor of any right in the cotenants[5] or it may arise from acts or circumstances attending such ad-
verse possession which are overt, notorious, and unequivocal in their character and import.[6] A judicial pro-
ceeding involving land owned in cotenancy may charge cotenants with notice that a cotenant who is in sale pos-
session claims and holds the property adversely to the others, and indeed, it ordinarily does so charge the coten-
ants out of possession where the fact of an exclusive claim appears from the proceeding.[7]
Observation:
From acts of an adverse claimant that are overt, notorious, and unequivocal, it is the duty of the other cotenants
to be informed and to draw such reasonable inferences as prudent persons possessed of, and interested in, like
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Page 429 of 665
AMJUR ADVERSE § 207
Page 2
3 Am. Jur. 2d Adverse Possession § 207
infonnation would natural1y do, and cotenants out of possession cannot prevent the operation of the statute of
limitations by proving that they did not know of the facts affecting their interest, or, knowing of them, did not
draw correct conclusions therefrom.[8]
Vague assertions of public opinion that a cotenant in possession is claiming to be the owner do not establish
notorious acts of such unequivocal character that notice to other cotenants must be presumed.[9] While the pay-
ment of taxes on the property is strong evidence of a c1aim of title, it does not suffice to give notice of the coten-
ant's claim as against the other cotenants.[IO]
CUMULATIVE SUPPLEMENT
Cases:
In limited circumstances, the notice requirement for a tenant c1aiming property by adverse possession will
be satisfied by constructive notice to the other cotenants and open and notorious possession. Wailuku Agribusi-
ness Co., Inc. v. Ah Sam, 114 Haw. 24, 155 P.3d 1125 (2007), as amended, (Apr. 12,2007).
lEND OF SUPPLEMENTI
[FNI] Mann v. Mann, 353 Mo. 619, 183 S.W.2d 557 (1944); Vasquez v. Meaders, 156 Tex. 28, 291
S.w.2d 926 (1956).
As to requirement of actual knowledge of hostile occupancy by cotenant, see § 206.
[FN2] Evans v. Covington, 795 S.W.2d 806 (Tex. App. Texarkana 1990).
[FN3] Schwab v. Wyss, 136 Kan. 54,12 P.2d 719 (1932).
[FN4] McCarthy v. George, 623 S.W.2d 772 (Tex. App. Fort Worth 1981), writ refused n.r.e., (Mar. 10,
1982) (insufficient notice).
The statute of limitations commences to run against cotenants when the cotenants knew, or should have
known, that another cotenant was claiming ownership by adverse possession. Dodson v. Muldrew, 239
Ark. 202, 388 S. W.2d 90 (1965).
[FN5] Mercer v. Wayman, 9111. 2d 441,137 N.E.2d 815 (1956).
[FN6] Wilkerson v. Thomas, 121 Cal. App. 2d 479, 263 P.2d 678 (2d Disl. 1953); Cook v. Rochford, 60
So. 2d 531, 32 A.L.R.2d 1210 (Fla. 1952); Mercer v. Wayman, 9 111. 2d 441, 137 N .E.2d 815 (1956).
[FN7] Derryberry v. Sims, 267 Ark. 846, 591 S.W.2d 662 (CI. App. 1979); Ruick v. Twarkins, 171
Conn. 149,367 A.2d 1380 (1976).
[FN8] Schwab v. Wyss, 136 Kan. 54, 12 P.2d 719 (1932); Severson v. McKenzie, 122 Neb. 827,241
N.W. 774 (1932).
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Page 430 of665
AMJUR ADVERSE § 207 Page 3
3 Am. Jur. 2d Adverse Possession § 207
If one tenant in common holds exclusive possession, claiming the land as his or her, and the tenant's
conduct and possession are of such character as to give notice to other cotenants that the fonner's pos-
session is adverse, the statute of limitations will run. Mercer v. Wayman, 9 III. 2d 441, 137 N.E.2d 815
(1956).
[FN9] Rachel v. Johnson, 230 Ark. 1003,328 S.W.2d 87 (1959).
[FNIO] Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625 (1954), error overruled, 222
Miss. 207, 78 So. 2d 471 (1955).
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AMJUR ADVERSE § 207
END OF DOCUMENT
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AMJUR ADVERSE § 208
3 Am. Jur. 2d Adverse Possession § 208
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
a. In General; As between Cotenants
Topic Summary Correlation Table References
§ 208. What constitutes hostile possession-Acts of ownership
West's Key Number Digest
West's Key Number Digest, Adverse Possession <8;=4, 10
West's Key Number Digest, Joint Tenancy <8;=9
A.L.R Library
Adverse possession between cotenants, 82 A.L.R. 2d 5.
Page 431 of 665
Page I
The performance by a possessor of ordinary acts of ownership on or in respect of the land does not establish
that the possession is adverse to the cotenants, whether or not they have notice of such acts.[I] For this reason,
whether the acts of ownership will be such as to break and dissolve the unity of possession, constitute an adverse
possession as against the cotenants, and amount to a disseisin, depends on the intent with which they are done,
and on their notoriety and essential character.[2] Accordingly, it is a general rule that the entry of a cotenant on
the common property, even if the possessor takes the rents or profits without accounting or paying for any share
of it, will not ordinarily be considered as adverse to other cotenants and an ouster of them.[3] Rather, such acts
will be construed in support of the common title.[4] Although the exclusive taking of the profits by one cotenant
for a long period of time, with the knowledge of the other cotenant, may raise a natural presumption of ouster on
which the jury may find ouster to exist, yet the law will not, merely from this fact, raise a presumption of ouster.[S]
Generally, a cotenant claiming adverse possession must show a definite and continuous assertion of an ad-
verse right by overt acts of unequivocal character clearly indicating an assertion of ownership of the premises to
the exclusion of the rights of the other cotenants.[6] A cotenant's sole possession of the land becomes adverse to
fellow cotenants by the possessor's repudiation or disavowal of the relation of cotenancy between them, and any
act or conduct signifying the intention to hold, occupy, and enjoy the premises exclusively, and of which the
cotenant out of possession has know ledge, or of which there is sufficient infonnation to put such cotenant on in-
quiry, amounts to an ouster of such cotenant.[7]
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Page 432 of665
AMJUR ADVERSE § 208 Page 2
3 Am. Jur. 2d Adverse Possession § 208
[FNI] Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App. San Antonio 1981).
[FN2] Torrez v. Brady, 37 N.M. 105, 19 P.2d 183 (1932).
A tenant in common did not constructively oust the other cotenants by paying past due taxes on the
property in 1939 or by using the property without paying rents or profits to the cotenants, where the
first tenant recognized the cotenancy in 1971 by buying a share in the property from a cotenant. Sheets
v. Sheets, 57 N.C. App. 336, 291 S.E.2d 300 (1982).
[FN3] Cary-Glendon Coal Co. v. Warren, 303 Ky. 846,198 S.W.2d 499 (1946).
[FN4] Cary-Glendon Coal Co. v. Warren, 303 Ky. 846,198 S.W.2d 499 (1946).
[FN5] Hare v. Chisman, 230 Ind. 333,101 N.E.2d 268 (1951).
[FN6] Sowers v. Keedy, 135 Md. 448, 109 A. 143 (1919); Gill v. Fletcher, 74 Ohio St. 295, 78 N.E.
433 (1906).
[FN7] Hurst v. lM. Griffin & Sons, 209 Miss. 381, 46 So. 2d 440 (1950), error overruled, 209 Miss.
381,47 So. 2d 811 (1950).
The possession of one tenant in common is the possession of all, but if one has the sole possession for
20 years without acknowledgment of title in a cotenant, and without any demand or claim to rents,
profits, or possession on the part of such cotenant, who is under no disability during the time, the law
raises a presumption that such sole possession is rightful, and will protect it. Brewer v. Brewer, 238
N.C. 607, 78 S.E.2d 719, 40 A.L.R.2d 763 (1953).
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AMJUR ADVERSE § 208
END OF DOCUMENT
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AMJUR ADVERSE § 209
3 Am. Jur. 2d Adverse Possession § 209
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
a. In General; As between Cotenants
Topic Summary Correlation Table References
§ 209. What constitutes hostile possession-Particular acts of ownership
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=4, 10
West's Key Number Digest, Joint Tenancy C=9
A.L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5.
Page 433 of 665
Page I
Where one cotenant occupies the common property notoriously as the sole owner, using it exclusively, im-
proving it, and taking to such cotenant's own use the rents and profits, or otherwise exercising over it such acts
of ownership as manifest unequivocally an intention to ignore and repudiate any right in other cotenants, such
occupation or acts and claim of sole ownership will amount to a disseisin of the other cotenants, and the posses-
sion will be regarded as adverse from the time they have knowledge of such acts or occupation and of the claim
of exclusive ownership.[l] However, leasing out the use and possession of the entire premises is not in itself an
ouster or disseisin of cotenants nor is it sufficient to establish an adverse possession against them.[2] Whatever
significance attaches to the making of improvements on the land depends on their nature and extent and on the
particular situation presented, and the making of improvements does not in ordinary circumstances provide a de-
cisive indication of possession adverse to other cotenants.[3] Although payment of real estate taxes by the coten-
ant in possession may not be a prerequisite to acquiring title by adverse possession, it is proper to consider pay-
ment of taxes as a factor in determining whether a claim of ownership exists or a claim is knowingly adverse,[4]
but the fact of payment of taxes may be inadequate or not given much weight.[5]
The recordation of a special warranty deed from the defendant cotenant, which granted one acre of the
60-acre tract at issue to her daughter, after the plaintiff cotenants had acquired an interest in the property, did not
give the plaintiff constructive notice that their cotenant relative claimed an interest adverse to theirs, since re-
cord notice goes forward, not backwards, and the law does not require a landowner to constantly examine the re-
cords to guard against instruments affecting title. [6] Many cases have held that the act of attempting to convey
the premises or a portion thereof to a stranger does not in itself establish that the grantor's possession is hostile
to other cotenants,[7] although such act may justi/)' an inference that the claimant asserts exclusive title to the
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Page 434 of 665
AMJUR ADVERSE § 209 Page 2
3 Am. Jur. 2d Adverse Possession § 209
land.[8] Nor is the act of mortgaging the property in itself conclusive evidence of an ouster,[9] but it is some
evidence of an intention to assert exclusive title in the possessor.[IO]
[FNI] Brewer v. Brewer, 238 N.C. 607, 78 S.E.2d 719, 40 A.L.R.2d 763 (1953); Preston v. Preston,
1949 OK 59, 201 Okla. 555, 207 P.2d 313 (1949).
[FN2] Dunlavy v. Lowrie, 372 111.622,25 N.E.2d 67 (1939).
[FN3] Heisel! v. Heiselt, 10 Utah 2d 126, 349 P.2d 175 (1960); Fritch v. Fritch, 53 Wash. 2d 496, 335
P.2d 43 (1959).
[FN4] Renensland v. Ellenberger, I Kan. App. 2d 659, 574 P.2d 217 (1977).
[FN5] Apodaca v. Tome Land & Imp. Co. (NSL), 91 N.M. 591, 577 P.2d 1237 (1978); Poenisch v.
Quarnstrom, 361 S.W.2d 367 (Tex. 1962).
[FN6] Spiller v. Woodard, 809 S.W.2d 624 (Tex. App. Houston 1st Dis!. 1991).
[FN7] Wheeler v. Harris, 232 Ark. 469, 339 S.W.2d 99 (1960); Moore v. Cole, 200 Tenn. 43, 289
S.W.2d 695 (1956).
[FN8] Sperry v. Tolley, 114 Utah 303,199 P.2d 542 (1948).
[FN9] Lambert v. Hemler, 244 III. 254, 91 N.E. 435 (1910).
[FNIO] Toomer v. Murphy, 198 Ark. 610, 129 S.W.2d 937 (1939); Preston v. Preston, 1949 OK 59, 201
Okla. 555, 207 P.2d 313 (1949).
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AMJUR ADVERSE § 209
END OF DOCUMENT
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AMJUR ADVERSE § 210
3 Am. Jur. 2d Adverse Possession § 210
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
a. In General; As between Cotenants
Topic Summary Correlation Table References
§ 210. What constitutes hostile possession-Possession under deed or color or title
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=4, 10
West's Key Number Digest, Joint Tenancy oC=9
A. L.R. Library
Adverse possession between cotenants, 82 A.L.R. 2d 5.
Page 435 of665
Page 1
The taking and recording of a deed by one cotenant from a third person will not have any effect as an ouster
of another cotenant as would lay the foundation for the commencement of an adverse possession, unless accom-
panied and followed by a hostile claim of which the cotenant out of possession had knowledge, and by acts of
possession not only inconsistent with, but in exclusion of, the continuing right of the cotenant out of posses-
sion.[I] Placing a tax deed for the whole tract on record by one cotenant is no ouster of another cotenant who
did not know of the adverse claim.[2] and this is true even though the claimant enters under such deed and exer-
eises certain acts of ownership.[3] The purchase by one cotenant of jointly held property from a tax sale adjudic-
atee followed by the purchaser's exclusive possession of the property does not act to oust the other cotenants as
the cotenant's purchase presumptively redeems the property for the benefit of all the co-owners.[4] However. if
one enters under color of title, claiming the whole tract for the possessor, and if other necessary conditions of
adverse ownership concur, the possession will be adverse to the other cotenant.[5] Where all cotenants originally
claimed under a particular instrument as color of title, such instrument may serve the same purpose for anyone
of them who may subsequently claim adversely as to the others.[6]
Observation:
A cotenant cannot base adverse possession on a deed acquired in bad faith.[7]
It is the prevailing view that the mere recording of a deed purporting to convey the full title to land owned
in cotenancy to a cotenant in possession, either from a cotenant or a stranger, does not in itself constitute notice
to the other cotenants of the possessor's adverse claim,[8] although the contrary result has been reached,[9] espe-
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Page 436 of 665
AMJUR ADVERSE § 210 Page 2
3 Am. Jur. 2d Adverse Possession § 210
cially where the adverse claimant believed him or herself to be the sole owner and consequently believed that he
or she did not take and hold possession as a cotenant.[ 10]
While it appears that a judicial decree purporting to establish the rights of cotenants, such as a partition de-
cree, under proper circumstances may constitute an ouster and color of title on which to base adverse posses-
sion,[1 I] this is not true where the adverse claimants hold under the decree in recognition of the right of the oth-
er cotenants.[12] Thus, where certain cotenants obtained a decree in partition adjudging them to be heirs of other
cotenants presumed dead under a statute providing for return of the property if the presumed dead should be
alive, it was ruled that the former held the property in recognition of the statute and under the decree in right of
the presumed dead cotenants and not adversely to them, and that such decree was not an ouster and was not col-
or of title on which to predicate adverse possession.[13]
[FNI] Wilkerson v. Thomas, 121 Cal. App. 2d 479, 263 P.2d 678 (2d Dist. 1953); Nichols v. Gaddis &
McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625 (1954), error overruled, 222 Miss. 207, 78 So. 2d 471
(1955); Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695 (1956).
[FN2] Miller v. Murphy, 119 Mont. 393, 175 P.2d 182 (1946).
[FN3] Boatman v. Beard, 1967 OK 33, 426 P.2d 349 (Okla. 1967).
[FN4] Boase v. Edmonson, 471 So. 2d 847 (La. Ct. App. 2d Cir. 1985).
[FN5] Black v. Beagle, 59 Wyo. 268,139 P.2d439, 148 A.L.R. 243 (1943).
As to what constitutes color of title, generally, see §§ 123 et seq.
[FN6] Russell v. Tennant, 63 W. Va. 623, 60 S.E. 609 (1908).
A partition agreement between cotenants that some would own a certain part of the land jointly and oth-
ers another part jointly constitutes a repudiation of the relationship of cotenancy and notice of adverse
possession. Condra v. Grogan Mfg. Co., 149 Tex. 380, 233 S.W.2d 565 (1950).
[FN7] Apodaca v. Hernandez, 61 N.M. 449, 302 P.2d 177 (1956).
[FN8] Wilkerson v. Thomas, 121 Cal. App. 2d 479, 263 P.2d 678 (2d Dist. 1953) (deed from stranger);
Nichols v. Gaddis & McLaurin, Inc., 222 Miss. 207, 75 So. 2d 625 (1954), error overruled, 222 Miss.
207,78 So. 2d 47 I (1955) (deed from cotenant).
[FN9] Arends v. Frerichs, 192 Iowa 285, 184 N.W. 650 (1921), reh'g dismissed, 192 Iowa 1318, 186
N.W. 457 (1922).
There is some indication that a conveyance from a stranger stands in a different light from that of a con-
veyance from another cotenant. Chapin v. Stewart, 71 Idaho 306, 230 P.2d 998 (1951).
[FNIO] Johns v. Scobie, 12 Cal. 2d 618,86 P.2d 820,121 A.L.R. 1404 (1939).
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Page 437 of665
AMJUR ADVERSE § 210 Page 3
3 Am. Jur. 2d Adverse Possession § 210
[FNll] Ruick v. Twarkins, 171 Conn. 149, 367 A.2d 1380 (1976) (void probate decree may furnish
proof of the elements of ouster and claim of right against cotenants).
An award of property to a plaintiff by a decree of distribution met the statutory test for color of title
where the decedent's will was admitted to probate and an inventory containing a description of the prop-
erty was filed. Nicholas v. Cousins, I Wash. App. 133,459 P.2d 970 (Div. 31969).
[FNI2] Christiansen v. Christiansen, 159 F.2d 366 (C.C.A. 5th Cir. 1947).
[FNI3] Christiansen v. Christiansen, 159 F.2d 366 (C.C.A. 5th Cir. 1947).
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AMJUR ADVERSE § 211
3 Am. Jur. 2d Adverse Possession § 211
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Patties
6. Cotenants
a. In General; As between Cotenants
Topic Summary Correlation Table References
§ 211. Tacking of successive possessions
West's Key Number Digest
West's Key Number Digest, Adverse Possession €o=4, 10
West's Key Number Digest, Joint Tenancy €o=9
Forms
Page 438 of 665
Page I
Instruction to jury-Period of adverse possession-Tacking prior possession. I BAm. Jur. Pleading and
Practice Forms, Adverse Possession § 49.
Sufficient privity may exist between cotenants to permit the tacking of successive possessions.[I] The title
acquired by one cotenant of real property under a deed in severalty from a cotenant who is holding adversely
does not inure to the benefit of other cotenants, and the grantees may tack their possession to that of their grant-
or for the purpose of establishing a title by adverse possession as against other cotenants.[2]
Caution:
A grantee was not entitled to tack the period of such grantee's exclusive possession of the property and payment
of taxes to similar exclusive possession and payment of taxes by the grantor to establish adverse possession
against a cotenant under a statute providing that a cotenant who has been in exclusive possession of real prop'
erty for an uninterrupted period of twenty years, and has paid all taxes assessed against such property while in
possession, may bring an action to establish adverse possession as against all other cotenants.[3]
[FNI] Woodruffv. Roysden, lOS Tenn. 491, 58 S.W. 1066 (1900).
As to tacking of successive possessions, generally, see §§ 76 et seq.
[FN2] May v. Chesapeake & o. Ry. Co., 184 Ky. 493, 212 S.W. 131 (1919); Bradford v. Armijo, 28
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Page 439 of 665
AMJUR ADVERSE § 211 Page 2
3 Am. Jur. 2d Adverse Possession § 211
N.M. 288, 210 P. 1070 (1922).
[FN3] Willson v. Hessong, 38 Or. App. 269, 589 P.2d 1194 (1979).
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Westiaw.
AMJUR ADVERSE § 212
3 Am. Jur. 2d Adverse Possession § 212
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
a. In General; As between Cotenants
Topic Summary Correlation Table References
§ 212. Interruption ofstatute
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 4 , 10
West's Key Number Digest, Joint Tenancy ~ 9
Page 440 of 665
Page I
The bringing of an action involving title by a cotenant in possession in the joint names of the cotenants is an
acknowledgment of the right of the cotenant out of possession and interrupts the running of the statute.[I] A suit
by a cotenant in possession against other contents to annul a previous partition and for a new partition also ar-
rests the running of the statute, which is based on the continued existence of the cotenancy.[2] A judgment
against a person in possession of land, declaring that the deed under which the possessor holds is void and that
the possessor is a cotenant with the other parties to the suit, interrupts and destroys any adverse possession the
possessor may have had against the cotenants and restores the seisin to all of them, and the subsequent silent
possession of such person claiming under the same deed, unaccompanied by an act amounting to an ouster of
cotenants, will not constitute such adverse possession against the other cotenants as will vest title by the statute
of limitations.[3]
[FNI] McLeam v. Wallace, 35 U.S. 625, 9 L. Ed. 559 (1836).
As to substantial interruption of an adverse possession before the lapse of the period required to consti-
tute the statutory bar, see §§ 88 et seq.
[FN2] Newman v. Newman, 451 S.W.2d 417 (Ky. 1970).
As to partition, generally, see 59A Am. Jur. 2d, Partition.
[FN3] Stewart v. Stewart, 83 Wis. 364, 53 N.W. 686 (1892).
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AMJUR ADVERSE § 212
Page 2
3 Am. Jur. 2d Adverse Possession § 212
rights reserved.
AMJUR ADVERSE § 212
END OF DOCUMENT
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AMJUR ADVERSE § 213
3 Am. Jur. 2d Adverse Possession § 213
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
a. In General; As between Cotenants
Topic Summary Correlation Table References
§ 213. Interruption of statute--Purchase or acquisition of undivided interest by adverse occupant
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 4 , 10
West's Key Number Digest, Joint Tenancy ~ 9
Page 1
It has been said that where an adverse claimant was in possession of certain specific tracts, but purchased
additional undivided interests, such purchases could be considered as purchases of title to support possession
which would be in effect a recognition of the common title.[l] Moreover, where an occupant ofland under a tax
title becomes entitled to an undivided part of the land by a conveyance of the original title to such part, a pre·
sumption arises that the occupant is a cotenant with other owners of the original title, and that the occupant
ceases to be an adverse holder; however, such presumption may be overcome by evidence that the original pos-
session was continued with the intention to exclude the other owners from any right or interest in the land.[2]
In most cases, however, a purchase or offer to purchase a cotenant's interest does not interrupt the continuity
of the occupant's adverse possession as regards the owners of other undivided interests.[3] Thus, an adverse
claimant of real property does not by taking deeds of an undivided interest become a cotenant with other holders
of undivided interests so as to affect the adverse character of the subsequent possession, regardless of the
claimant's intention to recognize the title from which the grantors derived their interest and of knowledge of the
extent or nature of the claim asserted by them.[4]
[FN1] Viduarri v. Bruni, 154 S.W.2d 498 (Tex. Civ. App. San Antonio 1941), affd in part, rev'd in part
on other grounds, 140 Tex. 138, 166 S.W.2d 81 (1942).
[FN2] Cook v. Clinton, 64 Mich. 309, 31 N.W. 317 (1887).
[FN3] Meaders v. Moore, 134 Tex. 127, 132 S.W.2d 256, 125 A.L.R. 817 (Comm'n App. 1939).
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AMJUR ADVERSE § 213
Page 2
3 Am. Jur. 2d Adverse Possession § 213
[FN4] Meaders v. Moore, 134 Tex. 127, 132 S.W.2d 256, 125 A.L.R. 817 (Comm'n App. 1939) (heirs
at law).
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AMJUR ADVERSE § 214
3 Am. Jur. 2d Adverse Possession § 214
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
b. Under Conveyance by Cotenant to Stranger
Topic Summary Correlation Table References
§ 214. Generally; conveyance of undivided interest
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=4, 10
West's Key Number Digest, Joint Tenancy €:=9
A.L.R. Library
Page 444 of 665
Page I
Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R. 2d
1214 § 2.
The mere purchase of the undivided interest of one cotenant, and entry under such conveyance, does not
amount to a disseisin of another cotenant that can ripen into a good title, since the grantee can claim merely to
succeed to the title of the granting cotenant.[l]
Thus, the grantees under a deed conveying only an undivided half interest cannot use the grantor's posses-
sion to establish title to more than the undivided half interest.[2]
A sheriffs deed of the interest of one cotenant, together with actual possession by the grantee, does not con-
stitute an ouster of the cotenant whose interest is not sold, nor can it be made the foundation for a claim of title
by adverse possession as against such cotenant since the purchaser at a sheriffs sale receives only the interest
that the execution debtor has in the property.[3]
[FN I] Cook v. Rochford, 60 So. 2d 531, 32 A.L.R.2d 1210 (Fla. 1952).
[FN2] Mills v. Roy O. Martin Lumber Co., 129 So. 2d 78 (La. CI. App. 3d Cir. 1961).
[FN3] Fallon v. Davidson, 137 Colo. 48, 320 P.2d 976 (1958).
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AMJUR ADVERSE § 214 Page 2
3 Am. Jur. 2d Adverse Possession § 214
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AMJUR ADVERSE § 215
3 Am. Jur. 2d Adverse Possession § 215
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
b. Under Conveyance by Cotenant to Stranger
Topic Summary Correlation Table References
§ 215. Conveyance of entire interest
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>4, 10
West's Key Number Digest, Joint Tenancy €=>9, 13
A.L.R. Library
Page 446 of 665
Page I
Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R. 2d
1214 §§ 2,14.
It is a widely accepted rule that a conveyance by one cotenant to a stranger to the title, by an instrument pur-
porting to pass the entire title in severalty, and not merely such cotenant's individual interest, followed by an
entry into actual, open, and exclusive possession by such stranger under claim of ownership in severalty,
amounts to an ouster of the other cotenants, which, if continued with the necessary requisites for the statutory
period, will ripen into good title by adverse possession.[l]
An ouster of the cotenants of the grantor will ordinarily be presumed when the grantor conveys the entire
property to a stranger who takes possession under the deed claiming sole ownership.[2] In considering this ques-
tion, the principle that one who enters on land is presumed to enter under the title that the deed purports on its
face to convey, as respects both the extent of the land and the nature of the person's interest, is applied.[3]
Therefore, in such case, a sale of the whole tract is in effect such assertion of a claim to the whole as to be in-
compatible with an admission that the other cotenant has any right whatever, and it follows that acts of owner-
ship on the part of such grantee must necessarily be adverse to any other part owner,[4] even in the absence of
actual notice to the other cotenant of the adverse character of the possession.[5]
In some jurisdictions, however, a cotenant's deed of the entire fee is not sufficient to oust the other coten-
ants.[6] Thus a grantee of a cotenant, though the conveyance purports to be in severalty, takes the place of the
grantor, and the entry under such conveyance is not, any more than if it were on its face restricted to the actual
interest of the grantor, presumed to be adverse to the other cotenants.[7]
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Page 447 of665
AMJUR ADVERSE § 215 Page 2
3 Am. Jur. 2d Adverse Possession § 215
Observation:
The rule that a conveyance, by a cotenant in possession, of the entire interest to a stranger amounts to an ouster
of the cotenants out of possession does not apply in the situation in which the interest granted is a remainder in-
terest, subject to a life interest in the property on the part of the grantor.[8]
[FNI] Braue v. Fleck, 23 N.J. I, 127 A.2d I (1956); Jones v. Tate, 68 N.M. 258, 360 P.2d 920 (1961);
Scramlin v. Warner, 69 Wash. 2d 6, 416 P.2d 699 (1966).
[FN2] Smith v. Lemp, 31 Del. Ch. 1,63 A.2d 169 (1949).
[FN3] Patterson v. Miller, 154 Ark. 124,241 S.W. 875 (1922); Tate v. Tate, 15 S.W.2d 159 (Tex. Civ.
App. Eastland 1929), writ granted, (Oct. 16, 1929) and rev'd on other grounds, 27 S.W.2d 137 (Tex.
Comm'n App. 1930).
[FN4] Jackson v. Cole, 146 Ark. 565,226 S.W. 1064 (1921).
[FN5] Jackson v. Cole, 146 Ark. 565,226 S.W. 1064 (1921).
[FN6] Fallon v. Davidson, 137 Colo. 48, 320 P.2d 976 (1958), and declining to decide the question, but
citing John L. Roper Lumber Co. v. Richmond Cedar Works, 165 N.C. 83, 80 S.E. 982 (1914).
[FN7] Johnson v. McLamb, 247 N.C. 534,101 S.E.2d 311 (1958).
[FN8] Lindsey v. Lindsey, 249 Ga. 832, 294 S.E.2d 512 (1982).
As to life tenancies and remainders, see §§ 232 to 236.
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AMJUR ADVERSE § 216
3 Am. Jur. 2d Adverse Possession § 216
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
b. Under Conveyance by Cotenant to Stranger
Topic Summary Correlation Table References
§ 216. Conveyance of entire interest-Quitclaim deed
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=4, 10
West's Key Number Digest, Joint Tenancy €:=9, 13
A.L.R. Library
Page 448 of 665
Page 1
Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R. 2d
1214 §4.
There is substantial authority to the effect that a quitclaim deed executed by a cotenant, that purports to con-
vey the entire property, is a sufficient basis on which to ground a title by adverse possession in the grantee.[I]
Such quitclaim deed is generally held to constitute color oftitle.[2]
The view has been taken, however, that a quitclaim deed made by one cotenant to a stranger operates only
as would a conveyance of the right, title, and interest of the grantor, and therefore does not amount to an ouster
of other cotenants which, when accompanied by the necessary possession, would start the running of the statute
of limitations against the other cotenants.[3] Under this rule, the rights of cotenants other than those directly
concerned remain unaffected by such transfers, whether voluntarily made or effected through an involuntary re-
linquishment of rights.[4] The fact that a quitclaim deed by one of two cotenants requires the grantee to assume
all taxes against the property does not show an intention of the grantor to convey more than the grantor's interest
in the property so as to establish the quitclaim deed as color oftitle against the interest of the other cotenant.[5]
[FNI] Chapin v. Letcher, 93 N.W.2d 415 (N.D. 1958).
[FN2] § 124.
[FN3] Cook v. Rochford, 60 So. 2d 531, 32 A.L.R.2d 1210 (Fla. 1952); Hurst v. J.M. Griffin & Sons,
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AMJUR ADVERSE § 216 Page 2
3 Am. JUT. 2d Adverse Possession § 216
209 Miss. 381, 46 So. 2d 440 (1950), error overruled, 209 Miss. 381, 47 So. 2d 811 (1950).
[FN4] Curtis v. Barber, 131 Iowa 400, 108 N. W. 755 (1906).
[FN5] Cook v. Rochford, 60 So. 2d 531, 32 A.L.R.2d 1210 (Fla. 1952)
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AMJUR ADVERSE § 217
3 Am. Jur. 2d Adverse Possession § 217
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
b. Under Conveyance by Cotenant to Stranger
Topic Summary Correlation Table References
§ 217. Conveyance of entire interest-Deed on judicial or execution sale
West's Key Number Digest
West's Key Number Digest, Adverse Possession €o=4, 10
West's Key Number Digest, Joint Tenancy €o=9, 13
A.L.R. Library
Page 450 of 665
Page I
Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R. 2d
1214 §§ 5, 7
A deed issued on a judicial or execution sale has the same effect as is attributed to an ordinary deed, that is,
it amounts to an ouster of all cotenants which, when possession is taken under any such deed, starts the running
of the statute of limitations.[I] So, where a person purchases land at an execution sale, and takes possession
thinking that title has been acquired to the entire tract, although the title of all cotenants has not in fact passed,
the purchaser acquires a title by adverse possession after the lapse of the statutory period.[2] Further, where
property is sold under mortgage foreclosure, the right of cotenants of the mortgagor to assert an interest in the
estate is barred after the statutory period, where the sale purports to convey the entire property and the purchaser
enters with that understanding.[3]
[FN I] Bradshaw v. Holmes, 246 S.W.2d 296 (Tex. Civ. App. Amarillo 195 I), writ refused n.r.e.
[FN2] Call v. Phelps's Adm'r, 20 Ky. L. Rptr. 507,45 SW 1051(Ky. 1898).
[FN3] Dew v. Gamer, 207 Ala. 353, 27 A.L.R. 5 (1922).
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AMJUR ADVERSE § 217
3 Am. Jur. 2d Adverse Possession § 217
AMJUR ADVERSE § 217
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AMJUR ADVERSE § 218
3 Am. Jur. 2d Adverse Possession § 218
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
b. Under Conveyance by Cotenant to Stranger
Topic Summary Correlation Table References
§ 218. Conveyance of entire interest-Executory contract or bond for title
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=>4, 10
West's Key Number Digest, Joint Tenancy C=>9, 13
Page 452 of 665
Page I
To constitute an ouster, it is not required that the writing by which one cotenant purports to convey an estate
held jointly with others should at once vest legal title in the purchaser, provided possession is taken, and an
entry under a bond for title is a sufficient ouster of the cotenants of the grantor to set in motion the statute of
limitations against them, although the purchaser does not acquire the legal title until long after entry.[1] It has
also been held that a purchaser may acquire title by adverse possession as against cotenants under an executory
agreement by one cotenant to convey the whole.[2]
Observation:
It has been held, on the other hand, that where one spouse executes a contract to convey property held jointly by
both spouses, the possession of the purchaser under such a contract is not adverse to the spouse not executing
the instrument.[3]
[FNI] Rose v. Ware, 115 Ky. 420, 24 Ky. L. Rptr. 2321, 74 S.W. 188 (1903), reh'g overruled, 25 Ky. L.
Rptr. 947, 76 S.W. 505 (Ky. 1903).
Where one is a purchaser from a cotenant, and, as such, receives a bond or other writing showing a pur-
chase and that the person will be given a conveyance on complying with the terms thereof, and the per-
son enters under such writing claiming the whole, and maintains an open and notorious possession, the
person thereby ousts the cotenants of the seller, and the stalute of limitations begins to run in favor of
such purchaser from the time the person first takes exclusive possession. Lloyd v. Mills, 68 W. Va. 241,
69 S.E. 1094 (1910).
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AMJUR ADVERSE § 218 Page 2
3 Am. Jur. 2d Adverse Possession § 218
[FN2] Patterson v. Miller, 154 Ark. 124, 241 S.W. 875 (1922); Clarke v. Dirks, 178 Iowa 335, 160
N.W. 31 (1916).
[FN3] McNeeley v. South Penn Oil Co., 52 W. Va. 616,44 S.E. 508 (1903).
As to effect of family relationship, see §§ 180 et seq.
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AMJUR ADVERSE § 219
3 Am. Jur. 2d Adverse Possession § 219
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
b. Under Conveyance by Cotenant to Stranger
Topic Summary Correlation Table References
§ 219. Conveyance of entire interest-Mortgage
West's Key Number Digest
West's Key Number Digest, Adverse Possession ~ 4 , 10
West's Key Number Digest, Joint Tenancy ~ 9 , 13
A.L.R. Library
Page 454 of 665
Page I
Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R. 2d
l2l4§6.
A mortgage by a cotenant to a third person, not followed by possession thereunder, does not amount to an
ouster of other cotenants so as to ripen into an adverse title as against such cotenants at the tennination of the
statutory period.[I] Thus, the giving by one cotenant of a mortgage deed to land not in the actual occupancy of
either cotenant, though purporting to cover and convey the entire lot, does not of itself operate as an ouster of
the other cotenant.[2] In order that the giving of such deed should have efficacy toward constituting an ouster, it
should be accompanied and followed by a claim of ownership of which such other cotenant had knowledge, and
by acts of possession not only inconsistent with, but in exclusion of, the other cotenant's rights.[3]
[FNI] King v. Hill, 141 Tex. 294,172 S.W.2d 298 (1943).
[FN2] Scottish-American Mortg. Co. v. Bunckley, 88 Miss. 641,41 So. 502 (1906).
[FN3] Scottish-American Mortg. Co. v. Bunckley, 88 Miss. 641,41 So. 502 (1906).
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AMJUR ADVERSE § 219
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3 Am. Jur. 2d Adverse Possession § 219
END OF DOCUMENT
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AMJUR ADVERSE § 220
3 Am. Jur. 2d Adverse Possession § 220
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
b. Under Conveyance by Cotenant to Stranger
Topic Summary Correlation Table References
§ 220. Nature and extent of possession
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=4, 10
West's Key Number Digest, Joint Tenancy €:=9, 13
A.L.R. Library
Page 456 of 665
Page I
Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R. 2d
1214 § 8.
To enable one claiming an entire tract of land under a conveyance from one cotenant to establish title
thereto and oust other cotenants, it is essential for the possessor to intend to hold the property adversely and oust
the cotenants of the grantor.[I] It is stated that the entry of the grantee under a conveyance that purports to con-
vey the whole property evinces an intention on the part of the grantee to claim the whole property.[2] A grantee
of a cotenant by a deed purporting to convey a full title who promptly records the deed, takes possession of the
real estate, and thereafter seeks to quiet title as against the grantor's cotenants, is presumed to hold all that the
deed calls for and therefore to hold adversely to the other cotenants.[3] Possession under such adverse claim
does not require actual residence on the land by the grantee, but possession by tenants or by others with permis-
sion of the grantee is sufficient.[ 4]
A grantee who recognizes an outstanding legal title vested in the cotenants of the grantor cannot acquire
title to the whole tract by adverse possession.[5] This is true even though the deed purports to convey the entire
property,[6] and especially where the conveyance by one cotenant excepts and reserves the interests of the other
cotenants and this reservation is recognized by the grantee.[7] In a number of cases, however, it has been held
that conduct of a grantee of a cotenant acknowledging the interests of the other cotenants was insufficient to pre·
vent ripening in the grantee of title by adverse possession.[8]
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AMJUR ADVERSE § 220 Page 2
3 Am. Jur. 2d Adverse Possession § 220
[FNl] Price v. Hall, 140 Ind. 314, 39 N.E. 941 (1895).
[FN2] Rose v. Ware, 115 Ky. 420, 24 Ky. L. Rptr. 2321, 74 S.W. 188 (1903), reh'g overruled, 25 Ky. L.
Rptr. 947, 76 S.W. 505 (Ky. 1903).
[FN3] Farmers State Bank of Clay Center v. Lanning, 162 Kan. 95, 174 P.2d 69 (1946).
A grantee under a quitclaim deed from a cotenant who farmed such land and adjoining land as a unit,
leveled the land, rendered it for taxation in his name, included it in financial statements to his banker,
and held out to neighbors that it was his land, had possession sufficiently hostile for purposes of ad-
verse possession. Lummus v. Brackin, 59 N.M. 216,281 P.2d 928 (1955).
[FN4] Whittington v. Cameron, 385 Ill. 99, 52 N.E.2d 134, 150 A.L.R. 551 (1943).
As to occupancy by agent or tenant as constituting possession by adverse claimant, see § 24.
[FN5] Allen v. Allen, 292 Ill. 453, 127 N.E. 85,27 A.L.R. I (1920).
[FN6] Long v. Morrison, 251 Ill. 143,95 N.E. 1075 (1911).
[FN7] Grand Tower Mining, Mfg. & Transp. Co. v. Gill, 111 Ill. 541, 1884 WL 9986 (1884).
[FN8] Weaver v. Blackmon, 212 Ala. 681, 103 So. 889 (1925); Harjo v. Mathis, 1935 OK 135, 170
Okla. 523, 41 P.2d 92 (1935).
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AMJUR ADVERSE § 220
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AMJUR ADVERSE § 221
3 Am. Jur. 2d Adverse Possession § 221
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, 1. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
b. Under Conveyance by Cotenant to Stranger
Topic Summary Correlation Table References
§ 221. Nature and extent of possession-Ouster of cotenants
West's Key Number Digest
West's Key Number Digest, Adverse Possession oC=4, 10
West's Key Number Digest, Joint Tenancy oC=9, 13
A.L.R. Library
Page 458 of 665
Page I
Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R. 2d
1214 §§ 9,10.
While it is true that ouster of the other cotenants by the grantee of one of the cotenants must appear in order
to support an adverse claim, this does not necessarily require actual physical ouster, and it is sufficient if the
grantee claims exclusive ownership and, by conduct, denies the right of others to any interest in the property.[ I]
However, in order for an ouster of the cotenants of the grantor to occur, and title to become vested in the grantee
by adverse possession, it is necessary for the grantee to enter into actual possession of the property,[2] either
personally or through another.[3] An ouster of the cotenants of a grantor will ordinarily be presumed where the
grantor conveys the property to a stranger who takes possession under the deed claiming sole ownership.[4]
Thus, where one of several cotenants conveys by an instrument purporting to vest the fee in the grantee, and the
latter enters, asserting open and exclusive ownership in severalty, the cotenants not conveying are deemed to be
ousted, and on the termination of the statutory period the title by adverse possession becomes vested in the
grantee.[5]
CUMULATIVE SUPPLEMENT
Cases:
In order to adversely possess the interests of co-tenants, an adverse possessor must prove ouster; ouster is
unequivocal notice by one co-tenant that he intends to adversely possess the claims of his fellow co-tenants.
Williams v. Estate of Williams ex reI. Fairley, 952 So. 2d 950 (Miss. Ct. App. 2006), cert. denied, 951 So. 2d
563 (Miss. 2007).
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AMJUR ADVERSE § 221 Page 2
3 Am. Jur. 2d Adverse Possession § 221
lEND OF SUPPLEMENTI
[FNI] Davis v. Hamesberger, 211 Ga. 625, 87 S.E.2d 841 (1955); Reed v. Bales, 240 Miss. 592, 128
So. 2d 374 (1961).
[FN2] Seawood v. Ozan Lumber Co., 221 Ark. 196,252 S.W.2d 829 (1952).
[FN3] §§ 23, 24.
[FN4] Smith v. Lemp, 31 Del. Ch. 1,63 A.2d 169 (1949).
[FN5] Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695 (1956).
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AMJUR ADVERSE § 221
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AMJUR ADVERSE § 222
3 Am. Jur. 2d Adverse Possession § 222
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
b. Under Conveyance by Cotenant to Stranger
Topic Summary Correlation Table References
§ 222. Notice to cotenants of hostile holding
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=4, 10
West's Key Number Digest, Joint Tenancy C=9, 13
A.L.R. Library
Page 460 of 665
Page I
Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R. 2d
1214 § 12.
Where a cotenant purports to convey the fee to an entire premises held jointly with others, and the grantee
enters, endeavoring to establish title to the entire premises by adverse possession, it is essential that the coten-
ants of the grantor have notice of the adverse claim of the grantee.[I] Thus, evidence that a cotenant has not par-
ticipated in a deed executed by other cotenants purporting to convey the entire title to the land, and has no notice
of the adverse character of the holding under the deed, bars such grantee trom acquiring title thereto by adverse
possession.[2]
It is not essential, however, that the cotenants should receive actual notice, if by reason of the facts and cir-
cumstances they can be charged with notice that their interests are being jeopardized.[3] All the law seems to re-
quire is that the acts of dominion over the property be of such character as may be reasonably expected to in-
form the cotenants of the fact of possession and the adverse claim of title.[4] Constructive notice is equally ef-
fective even though the cotenants are nonresidents of the state wherein the property is located.[5]
[FNI] Wheeler v. Harris, 232 Ark. 469, 339 S.W.2d 99 (1960); Chapin v. Letcher, 93 N.W.2d 415
(N.D. 1958); Frank v. Johnson, 261 Ala. 642, 75 So. 2d 153 (1954); Hines v. Pointer, 523 S.W.2d 733
(Tex. Civ. App. Fort Worth 1975), writ refused n.r.e., (Oct. 15, 1975).
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AMJUR ADVERSE § 222 Page 2
3 Am. Jur. 2d Adverse Possession § 222
[FN2] West v. Evans, 29 Cal. 2d 414, 175 P.2d 219 (1946); Fordson Coal Co. v. Vanover, 291 Ky. 447,
164 S. W.2d 966 (1942).
[FN3] Stull v. Board of Trustees of Dona Ana Bend Colony Community Grant, 61 N.M. 135, 296 P.2d
474 (1956); Chapin v. Letcher, 93 N.W.2d 415 (N.D. 1958).
[FN4] Stull v. Board of Trustees of Dona Ana Bend Colony Community Grant, 61 N.M. 135,296 P.2d
474 (1956).
Where the grantee from a cotenant recorded the conveyance and exercised complete dominion over the
premises, the jury could find both actual and constructive notice to the cotenants of the adverse holding
and disseisin. Beazley v. Beazley, 273 S.W.2d 938 (Tex. Civ. App. Beaumont 1954), writ refused n.r.e.,
(Mar. 30, 1955).
[FN5] Talbott v. Woodford, 48 W. Va. 449, 37 S.E. 580 (1900).
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AMJUR ADVERSE § 223
3 Am. Jur. 2d Adverse Possession § 223
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
6. Cotenants
b. Under Conveyance by Cotenant to Stranger
Topic Summary Correlation Table References
§ 223. Notice to cotenants of hostile holding-Effect of recording or failing to record deed
West's Key Number Digest
West's Key Number Digest, Adverse Possession <€)::::::>4, 10
West's Key Number Digest, Joint Tenancy €:=9, 13
A.L.R. Library
Page 462 of 665
Page I
Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R. 2d
1214 §§ 12, 13.
Although there is authority to the contrary,[I] the view is widely taken that the recordation of a deed from a
cotenant to a stranger, purporting to pass title to the entire property, is sufficient notice to the grantor's cotenants
for purposes of establishing title in the grantee by adverse possession,[2] especially if it is followed by open pos-
session by the grantee.[3] Unquestionably, where one holds under the deed of a cotenant conveying a designated
specific portion of a tract held in common, the recorded deed and possession are notice to the other cotenants of
the tract that the grantee is holding the designated portion adversely to them.[4]
The mere fact that the deed conveying the entire interest in the land under which a stranger claims as
grantee of one of several cotenants was not placed on record does not prevent the statute of limitations from run-
ning, if the grantee takes open and exclusive possession.[5]
[FN I] West v. Evans, 29 Cal. 2d 414, 175 P.2d 219 (1946).
The recordation of a cotenant's deed conveying the entire interest in land is not the repUdiation of coten-
ancy as a matter of law, but is merely evidence of repudiation. Gore v. Cunningham, 297 S.W.2d 287
(Tex. Civ. App. Beaumont 1956), writ refused n.r.e.
[FN2] Sams v. Sampson, 255 S.W.2d 626 (Ky. 1953); Lummus v. Brackin, 59 N.M. 216, 281 P.2d 928
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AMJUR ADVERSE § 223 Page 2
3 Am. Jur. 2d Adverse Possession § 223
(1955).
As to effect of recording as notice, see 66 Am. Jur. 2d, Records and Recording Laws §§ 82 to 135.
[FN3] Parr v. Ratisseau, 236 S.W.2d 503 (Tex. Civ. App. San Antonio 1951), writ refused n.r.e.
[FN4] Parr v. Ratisseau, 236 S.W.2d 503 (Tex. Civ. App. San Antonio 1951), writ refused n.r.e.
[FN5] Eastman, Gardiner & Co. v. Hinton, 86 Miss. 604, 38 So. 779 (1905).
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we'stii:!w.
AMJUR ADVERSE § 224
3 Am. Jur. 2d Adverse Possession § 224
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
7. Mortgagor and Mortgagee
Topic Summary Correlation Table References
§ 224. Possession by mortgagor and those claiming under mortgagor
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>4, 10
West's Key Number Digest, Mortgages €=>213, 214
Page 464 of 665
Page I
As a general rule, the possession of a mortgagor or an assignee of the mortgagor cannot be adverse to the
rights and estate of the mortgagee[l] until the mortgagor has denied the mortgagee's rights under the mortgage
and claimed an exclusive title[2] so openly and notoriously that the mortgagee must have known of the adverse
claim.[3] So long as the relation of mortgagor and mortgagee is recognized between the parties by the receipt of
payments on account of principal or interest, or in any other way, there can be no adverse possession by the
mortgagor[4] or a grantee of the mortgagor.[5] A mere repudiation of the mortgagee's interest is not enough to
start the statute running.[6]
Ordinarily, where either a mortgagor or a grantee or assignee of the mortgagor claims adversely to the mort-
gagee, at least where the adverse possession does not antedate the execution of the mortgage, the period of ad-
verse possession does not, in the absence of open denial or disaffirmance of the mortgagee's interest, commence
running against the mortgagee until the maturity of the mortgage or foreclosure, since before that time the mort-
gagee has no cause of action to eject the mortgagor or those claiming under the mortgagor, and their possession
is permissive rather than adverse.[7]
Caution:
Even though there has been default in interest payments due under a mortgage, and there is a provision in the
notes for acceleration of payment on such default "at the option of the holder," where there has been no exercise
of this option, limitations do not begin until the maturity ofthe notes.[8]
[FNI] Allemannia Fire Ins. Co. v. York, 16 Tenn. App. 167, 65 S.W.2d 838 (1932); Calvert v. Hanna,
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AMJUR ADVERSE § 224
Page 2
3 Am. JUL 2d Adverse Possession § 224
140 S.W.2d 976 (Tex. Civ. App. Amarillo 1940).
As to adverse possession against a mortgagee, see § 168.
As to adverse possession against a purchaser at foreclosure sale, see § 225.
As to the right of a mortgagor to assert adverse title. see 54A Am. JUL 2d. Mortgages §§ 226 to 243.
[FN2] Allemannia Fire Ins. Co. v. York, 16 Tenn. App. 167, 65 S.W.2d 838 (1932); Calvert v. Hanna,
140 S.W.2d 976 (Tex. Civ. App. Amarillo 1940).
[FN3] Comstock v. Finn, 13 Cal. App. 2d 151, 56 P.2d 957 (4th Dis!. 1936); Calvert v. Hanna, 140
s. W.2d 976 (Tex. Civ. App. Amarillo 1940).
[FN4] Lewis v. Schwenn, 93 Mo. 26, 2 S.W. 391 (1886).
[FN5] Zeller's Lessee v. Eckert, 45 U.S. 289, 4 How. 289, II L. Ed. 979 (1846).
[FN6] Moerbe v. Beckmann, 132 S.W.2d 616 (Tex. Civ. App. Austin 1939), writ dismissed, judgment
correct.
[FN7] Norris v. lie, 152 Ill. 190, 38 N.E. 762 (1894); Grether v. Clark, 75 Iowa 383, 39 N.W. 655 (1888).
[FN8] Moerbe v. Beckmann, 132 S.W.2d 616 (Tex. Civ. App. Austin 1939), writ dismissed, judgment
correct.
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AMJUR ADVERSE § 224
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AMJUR ADVERSE § 225
3 Am. Jur. 2d Adverse Possession § 225
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
7. Mortgagor and Mortgagee
Topic Summary Correlation Table References
§ 225, Possession by mortgagor and those claiming under mortgagor-After foreclosure
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=4, 10
West's Key Number Digest, Mortgages C=213, 214
A,L.R, Library
Page 466 of 665
Page I
Possession of mortgagor or successor in interest as adverse to purchaser at foreclosure sale, 38 A.L.R. 2d
348 §§ 2, 3.
The mere sale of property on the foreclosure of a mortgage does not in itself so affect the possession of the
mortgagor or a successor in interest as to render it adverse to the purchaser or a grantee from the purchaser.[l]
As a general rule, possession by a mortgagor after a foreclosure sale is presumed to be in subordination to the
title of the purchaser and the statute of limitations does not run in favor of the mortgagor.[2] Any claim of ad-
verse possession by the mortgagor or a successor in interest against the purchaser at foreclosure sale, or the lat-
ter's grantee or assignee, is without effect where such possession is found to have been amicable.[3]
On the other hand, an adverse possession by a mortgagor and successors in interest as against purchasers at
the foreclosure sale may be commenced by open and hostile acts constituting an assertion of title, even though
the foreclosure proceedings have not been concluded by confirmation of the sale and execution of the sheritrs
deed.[4] The possession of a mortgagor or a successor in interest is adverse to the foreclosure sale purchaser, or
the latter's successor in interest, if such possession is recognized as hostile.[5] Where a mortgagor remains in the
open, notorious, and exclusive possession of the property for the statutory period after foreclosure, the mort-
gagor's title is not presumed to be subordinate to and in recognition of the rights of the purchaser at the foreclos-
ure sale.[6]
Observation:
Where a mortgagor remains in possession of only a portion of the premises for the statutory period after fore-
closure and the purchaser maintains possession of the balance of the premises, the view is taken that the pre-
sumption of subserviency of the mortgagor's title to that of the purchaser applies to such partial possession by
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Page 467 of 665
AMJUR ADVERSE § 225 Page 2
3 Am. Jur. 2d Adverse Possession § 225
the mortgagor.[7) In such situation, the mortgagor does not have the exclusive possession of the premises neces-
sary to acquire title by adverse possession.[8]
[FNI] Justice v. Graham, 246 S.W.2d 135 (Ky. 1952); Caruso v. Hunt, 69 N.J. Super. 447, 174 A.2d
381 (Ch. Div. 1961).
[FN2] Eason v. Samson Lodge No. 624, A.F. & A.M., 270 Ala. 194, 117 So. 2d 138 (1959).
A former owner who lost title to land through a foreclosure sale did not claim adversely to the record
owners where they had exercised complete dominion over the property, merely allowing the former
owner to remain on the land because of the former owner's extreme age. Justice v. Graham, 246 S.W.2d
135 (Ky. 1952).
[FN3] Bradshaw v. Darby, 201 Ark. 670, 146 S.W.2d 547 (1941); Justice v. Graham, 246 S.W.2d 135
(Ky. 1952).
[FN4) Brewster v. Herron, 1952 OK 440, 267 P.2d 143,38 A.L.R.2d 335 (Okla. 1952).
[FN5] Brewster v. Herron, 1952 OK 440, 267 P.2d 143, 38 A.L.R.2d 335 (Okla. 1952).
[FN6] Eason v. Samson Lodge No. 624, A.F. & A.M., 270 Ala. 194, 117 So. 2d 138 (1959).
[FN7) Eason v. Samson Lodge No. 624, A.F. & A.M., 270 Ala. 194, 117 So. 2d 138 (I 959).
[FN8] Eason v. Samson Lodge No. 624, A.F. & A.M., 270 Ala. 194, 117 So. 2d 138 (1959).
As to exclusiveness of possession, generally, see §§ 67 et seq.
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AMJUR ADVERSE § 226
3 Am. Jur. 2d Adverse Possession § 226
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
7. Mortgagor and Mortgagee
Topic Summary Correlation Table References
§ 226. Possession by mortgagee
West's Key Number Digest
West's Key Number Digest, Adverse Possession cC=4, 10
West's Key Number Digest, Mortgages cC=213, 214
A.L.R. Library
Page 468 of 665
Page I
Adverse possession: Mortgagee's possession before foreclosure as barring right of redemption, 7 A.L.R. 2d
1131.
As a general rule, the possession of the mortgagee is not considered hostile to the interests of the mortgagor
during the continuance of the relationship of mortgagor and mortgagee.[l] A mortgagee who enters the mort-
gaged property with pennission, either express or implied, of the mortgagor occupies the premises in the charac-
ter of quasi trustee for the mortgagor, and cannot hold adversely until the mortgagee distinctively disavows and
repudiates the mortgage relationship, and until notice thereof is brought home to the mortgagor.[2] The taking of
possession of mortgaged property by the mortgagee will not be regarded as adverse to the mortgagor where the
mortgagee states that the property was unoccupied and possession was taken in order to protect the mortgagee's
investment.[3] Generally, the possession of the mortgaged premises by the mortgagee, under an agreement to
apply the rents and profits to the satisfaction of the mortgage debt, does not become adverse to the mortgagor
until the debt is fully discharged from that source or there has been an express repudiation of the mortgage rela-
tionship. [4] The subsequent holding may be regarded as adverse, however, where the possession is held over
after the debt has been satisfied. [5]
Despite the rule that the mortgage relation is inconsistent with an adverse claim to the property by the mort-
gagee, where the mortgagee has expressly repudiated the rights of the mortgagor, and the repudiation is brought
home to the mortgagor, subsequent possession by the mortgagee will be regarded as adverse.[6] An original
entry by a mortgagee that was under a claim inconsistent with the rights of the mortgagor is a sufficient indica-
tion to the mortgagor that the possession was not in recognition of the right of redemption, so that, if continued
for the requisite period, any right that the mortgagor had in the property would be barred.[7] Furthermore, even
where the mortgagee's entry into possession was permissive or otherwise in recognition of the rights of the mort-
gagor, if the relationship subsequently is repudiated, and the acts in denial of the mortgagor's rights are brought
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Page 2
3 Am. Jur. 2d Adverse Possession § 226
to the notice of the mortgagor, the possession of the mortgagee thereafter will be regarded as adverse.[8] Where
a mortgagee in possession has repudiated the mortgage relationship, and indicated an intent to hold adversely,
the mere payment of taxes by the mortgagor will not stop the running of the statute in the mortgagee's favor.[9]
Under the rule that the mortgagee is entitled to possession of the mortgaged premises on default by the
mortgagor, even without bringing proceedings for foreclosure,[IO] possession by the mortgagee may be hostile
to the mortgagor in the sense that it is against the mortgagor's will. However, as a right conferred by the mort-
gage relationship, it cannot be said to be in denial of the mortgage so as to be hostile in the sense of a repudi-
ation of that relationship.[ II] Nevertheless, such rightful possession, if continued for the statutory period
without any acknowledgment of the right of redemption, may serve to bar any right in the mortgagor, even
without acts of positive repudiation of the mortgage.[12] Among the various acts that amount to an acknowledg-
ment of the mortgagor's rights, so that rightful possession of the mortgagee would not bar the equity of redemp-
tion, one of the most frequently mentioned is the act of accounting for rents or profits.[13] The courts have also
said that the receipt of interest or payments on the mortgage debt acts as an acknowledgment effective to bar the
running of limitations against the mortgagor's rights.[14] In some instances, an acknowledgment of the mortgage
relationship by the mortgagee even after possession has been had for the statutory period characterizes all previ-
ous possession as under the mortgage, and to revive the otherwise barred right of redemption.[15] While the acts
of the mortgagee are generally determinative of the question whether the mortgagee's possession will bar the
rights of the mortgagor, in some instances the courts have indicated that the mortgagor's concurrence in the inde-
pendent possession of the mortgagee may also be of some importance in characterizing the possession as
friendly or adverse.[1 6]
Where the grantee under a deed absolute in form, but intended as a mortgage, enters into possession of the
land conveyed, and holds it under circumstances which show possession that is adverse to the grantor, the statute
of limitations, in the absence of any agreement as to when the indebtedness secured by the deed is to be paid, be-
gins to run immediately from the date of the delivery of the deed.[17]
[FNI] Heidelberg v. Duckworth, 206 Miss. 388,40 So. 2d 179 (1949); Ham v. Flowers, 214 S.C. 212,
51 S.E.2d 753, 7 A.L.R.2d 1124 (1949).
[FN2] Ham v. Flowers, 214 S.C. 212, 51 S.E.2d 753, 7 A.L.R.2d 1124 (1949).
[FN3] Ham v. Flowers, 214 S.c. 212, 51 S.E.2d 753, 7 A.L.R.2d 1124 (1949).
[FN4] Tiger v. Sellers, 145 F.2d 920 (C.C.A. 10th Cir. 1944).
[FN5] Blanch v. Collison, 174 Md. 427,199 A. 466 (1938).
Where two improved contiguous lots were quitclaimed by a mortgagors! successors in title to the mort-
gagee in payment of the debt, and after a storm damaged the houses, the mortgagee moved into one of
them, made repairs, paid taxes and insurance, and occupied the lots alternately, the mortgagee acquired
title to both lots by adverse possession. Baldwin Co. v. Mason, 52 So. 2d 668 (Fla. 1951).
[FN6] Knight v. Hilton, 224 S.C. 452, 79 S.E.2d 871 (1954).
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3 Am. Jur. 2d Adverse Possession § 226
[FN7] Winburn v. Witt, 134 Ky. 339,120 S.W. 293 (1909).
[FN8] Mahaffy v. Faris, 144 Iowa 220, 122 N.W. 934 (1909); Becker v. McCrea, 193 N.Y. 423, 86
N.E. 463 (1908).
[FN9] Borden v. Clow, 21 Nev. 275, 30 P. 821 (1892).
[FNI0] 54A Am. Jur. 2d, Mortgages § 168.
[FNll] Munro v. Barton, 98 Me. 250,56 A. 844 (1903).
[FN 12] Charles B. Teasley, Inc., v. Dreyfus, 252 Ala. 41, 39 So. 2d 377 (1949).
[FNI3] Dixon v. Hayes, 171 Ala. 498, 55 So. 164 (1911) (overruled in part on other grounds by, Earn-
est v. Fite, 211 Ala. 363,100 So. 637 (1924)); Sandling v. Kearney, 154 N.C. 596, 70 S.E. 942 (1911).
[FNI4] Woods v. Sanders, 247 Ala. 492, 25 So. 2d 141 (1946).
[FNI5] Stebbins v. Clendenin, 136 Ark. 391, 206 S.W. 681 (1918).
[FNI6] Reynolds v. White, 94 Ky. 156, 14 Ky. L. Rptr. 825,21 S.W. 754 (1893).
[FNI7] Borden v. Clow, 21 Nev. 275, 30 P. 821 (1892).
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AMJUR ADVERSE § 226
END OF DOCUMENT
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AMJUR ADVERSE § 227
3 Am. Jur. 2d Adverse Possession § 227
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
7. Mortgagor and Mortgagee
Topic Summary Correlation Table References
§ 227. Possession by mortgagee-After foreclosure
West's Key Number Digest
West's Key Number Digest, Adverse Possession €=>4, 10
West's Key Number Digest, Mortgages €=>213, 214
Page 471 of665
Page I
Within the meaning of a statute that gives the right of redemption unless the mortgagee has maintained an
adverse possession for twenty years, a mortgagee who, with the mortgagor's consent, takes possession of the
property after a judgment of foreclosure, without sale, does not hold adversely.[I] The fact that the grantee of
the purchaser at an invalid foreclosure sale may, in equity, be deemed to be a mortgagee in possession, does not
make the grantee such in fact, so that such possession is not adverse to the mortgagor.[2] However, a mortgagee
who takes possession under invalid foreclosure proceedings after a default in payment may acquire title by ad-
verse possession for the statutory period.[3]
[FNI] Becker v. McCrea, 193 N.Y. 423, 86 N.E. 463 (1908).
[FN2] Brynjolfson v. Dagner, 15 N.D. 332,109 N.W. 320 (1906).
[FN3] Satterfield v. Peterson, 173 Neb. 618,114 N.W.2d 376 (1962).
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AMJUR ADVERSE § 227
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AMJUR ADVERSE § 228
3 Am. Jur. 2d Adverse Possession § 228
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
111. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
8. Trustee and Beneficiary
Topic Summary Correlation Table References
§ 228. Possession by trustee
West's Key Number Digest
West's Key Number Digest, Adverse Possession 08;=4, 10
West's Key Number Digest, Trusts 08;=138
A.L.R. Library
Page 472 of 665
Page I
What constitutes sufficient repudiation of express trust by trustee to cause statute of limitations to run, 54
A.L.R. 2d 13 § 38.
As a general rule, the possession of a trustee under an express trust is not adverse to that of the beneficiary.[
I] As long as the relation of trustee and beneficiary exists, the trustee, as fiduciary, may not assert an interest or
title antagonistic to the beneficiary.[2] Until the trust is openly repudiated, the beneficiary may rely on the integ-
rity and faithfulness of the trustee without forfeiting rights.[3] Indeed, the trustee's possession of trust property
is the possession of the beneficiary, whether the trust is express or implied.[4] That is, a trustee cannot set up a
title adverse to the beneficiary so long as the trust is acknowledged.[5]
Likewise, a constructive trustee of real property may not claim property by adverse possession without
clearly making the claim of ownership known to the beneficiary.[6]
[FNI] Giovani v. Rescorla, 69 Ariz. 20, 207 P.2d 1124 (1949); Boehnke v. Roenfanz, 246 Iowa 240, 67
N.W.2d 585, 54 A.L.R.2d I (1954).
[FN2] Garcia v. Sanchez, 64 N.M. 114,325 P.2d 289 (1958).
As to the running of the statute of limitations against trusts, generally, see 76 Am. Jur. 2d, Trusts §§
712 to 718.
[FN3] Homer v. Wullenweber, 89 Ohio App. 255,45 Ohio Op. 481, 101 N.E.2d 229 (1st Dis!. Hamilton
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AMJUR ADVERSE § 228 Page 2
3 Am. Jur. 2d Adverse Possession § 228
County 1951).
[FN4] Homer v. Wullenweber, 89 Ohio App. 255, 45 Ohio Op. 481, 101 N.E.2d 229 (1st Dist. Hamilton
County 1951).
[FN5] Homer v. Wullenweber, 89 Ohio App. 255, 45 Ohio Op. 481, 101 N.E.2d 229 (1st Dist. Hamilton
County 1951).
[FN6] Waxler v. Dalsted, 529 N.W.2d 176 (N.D. 1995).
A constructive trustee under a trust obligation to reconvey property upon a tender of a stipulated
amount was precluded from claiming the land by adverse possession. Warren v. Whitehall Income Fund
86,170 Ariz. 241, 823 P.2d 689 (Ct. App. Div. 21991), review withdrawn, (Jan. 21,1992).
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AMJUR ADVERSE § 228
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AMJUR ADVERSE § 229
3 Am. Jur. 2d Adverse Possession § 229
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
8. Trustee and Beneficiary
Topic Summary Correlation Table References
§ 229. Possession by trustee---When possession becomes hostile
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=4, 10
West's Key Number Digest, Trusts C=138
A.L.R. Library
Page 474 of665
Page I
What constitutes sufficient repudiation of express trust by trustee to cause statute of limitations to run, 54
A.L.R. 2d 13 §§ 2 et seq., 38, 40.
Generally, when a trustee repudiates the trust, and openly and notoriously claims an exclusive title, the
trustee's possession becomes hostile to the beneficiary[ I] from the time of a known disavowal of the trust.[2]
There must be a positive and continued disclaimer of title, and an assertion of adverse right brought home to the
beneficiary, before the statute of limitations will operate.[3] The mere failure of a trustee to account, without
more, is not such an entire repudiation of the trust to start the statute running.[4] The payment of taxes by or
through the trustee, or taking title in the name of the trustee, does not meet the requirement that the holding must
be open, hostile and adverse to the right of the beneficiary to start the statute running.[5] On the other hand,
where land was conveyed to church trustees in trust for use of the minister, and subsequently the church became
incorporated and leased the land and used the rents for general church purposes, assuming the trust continued
after the church became incorporated and that title became vested in it as trustee, the leasing of the land and the
use of the rentals for purposes at variance with those named in the trust instrument was tantamount to a repudi-
ation of the trust, and constituted a basis for an adverse possession ripening into title after lapse of the statutory
period.[6] A statement by a husband to his wife that she had no interest in his property, in which she claimed a
resulting trust on the ground of having contributed to the purchase price, constituted a repudiation of any trust.[7 ]
Where a trustee has repudiated obligations as a trustee, which need not be in specific words but may consist
of conduct inconsistent with the existence of the trust, and holds adversely, a beneficiary with knowledge of the
repudiation can no longer rely on the trustee's continued performance of duty, and the beneficiary is then in the
position similar to that of any other party who has an equitable claim against an adversary, and may become
barred by laches by failure to pursue a remedy with reasonable diligence.[8] If a trustee does an act that purports
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Page 475 of665
AMJUR ADVERSE § 229
Page 2
3 Am. Jur. 2d Adverse Possession § 229
to be a termination of the trust, it gives currency to the statute from the time of such act; or in other words, the
trustee thenceforth holds adversely.[9]
Title in the trustee becomes complete when the period has elapsed which the statute prescribes.[IO]
[FNI] Satariano v. Galletto, 66 Cal. App. 2d 813,153 P.2d 201 (1st Dis!. 1944).
As to accrual of cause of action against trustee on behalf of beneficiary, see 76 Am. Jur. 2d, Trusts §§
715,718.
[FN2] Boehnke v. Roenfanz, 246 Iowa 240, 67 N.W.2d 585, 54 A.L.R.2d I (1954); Presbyterian
Church of James Island v. Pendarvis, 227 S.C. 50, 86 S.E.2d 740 (1955).
As to effect of disability, see §§ 171 et seq.
[FN3] Dewey v. Dewey, 163 Neb. 296, 79 N.W.2d 578 (1956); Homer v. Wullenweber, 89 Ohio App.
255,45 Ohio Op. 481,101 N.E.2d 229 (1st Dis!. Hamilton County 1951).
Where a trustee openly informs the beneficiaries that the trustee has acquired their interests in the estate
by tax deed, followed by a request from them for quitclaim deeds, there is a repudiation of the trust and
an assertion of hostile possession by the trustee, and such acts by the trustee could not fail to convey to
the beneficiaries the hostile character of the possession then being asserted. Garcia v. Sanchez, 64 N.M.
114,325 P.2d 289 (1958).
[FN4] Combs v. Haddock, 190 Cal. App. 2d 151, 11 Cal. Rptr. 865 (2d Dis!. 1961).
[FN5] Whatley v. Wood, 148 Colo. 349, 366 P.2d 570 (1961).
[FN6] Presbyterian Church ofJames Island v. Pendarvis, 227 S.c. 50, 86 S.E.2d 740 (1955).
[FN7] Cassas v. Cassas, 73 Wyo. 147,276 P.2d 456, 69 A.L.R.2d 187 (1954).
[FN8] Presbyterian Church of James Island v. Pendarvis, 227 S.C. 50, 86 S.E.2d 740 (1955).
[FN9] Presbyterian Church of James Island v. Pendarvis, 227 S.C. 50, 86 S.E.2d 740 (1955).
[FNIO] Presbyterian Church of James Island v. Pendarvis, 227 S.c. 50, 86 S.E.2d 740 (1955).
The adverse possession by the trustees of trust property for more than 20 years bars recovery by the
heirs of the creator of the trust on the ground that the trust was void because it was against the rule
against perpetuities. American Colonization Soc. v. Soulsby, 129 Md. 605, 99 A. 944 (1917).
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AMJUR ADVERSE § 229
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Page 3
3 Am. Jur. 2d Adverse Possession § 229
END OF DOCUMENT
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AMJUR ADVERSE § 230
3 Am. Jur. 2d Adverse Possession § 230
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
8. Trustee and Beneficiary
Topic Summary Correlation Table References
§ 230. Possession by beneficiary
West's Key Number Digest
West's Key Number Digest, Adverse Possession C=4, 10
West's Key Number Digest, Trusts C=139.1
Page 477 of 665
Page I
As between trustee and beneficiary, the possession of the beneficiary is the possession of the trustee, and
cannot ordinarily be adverse.[I] If the holder of a legal title, subject to a resulting trust, permits the beneficiary
to occupy and enjoy the land as owner, the beneficiary can derive no advantage from lapse oftime.[2]
[FNI] Presbyterian Church of James Island v. Pendarvis, 227 S.C. 50, 86 S.E.2d 740 (1955).
[FN2] Miller v. Baker, 166 Pa. 414, 31 A. 121 (1895).
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AMJUR ADVERSE § 231
3 Am. Jur. 2d Adverse Possession § 231
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
8. Trustee and Beneficiary
Topic Summary Correlation Table References
§ 231. Possession by third person under conveyance or execution sale
West's Key Number Digest
West's Key Number Digest, Adverse Possession <£::=4, 10
Page 478 of 665
Page I
A possession must be regarded as adverse to both the trustee and the beneficiary, where the trustee sells the
trust estate to a purchaser for value, with warranty, without any intimation in the conveyance of the existence of
the subsisting trust, and the purchaser enters and occupies the estate and does no act that in any manner recog-
nizes the existence of the trust, provided, of course, that there is no fraud or concealment.[I] Furthermore, the
possession of property by a purchaser under an invalid conveyance by the trustee, without objection on the part
of the trustee, and claimed openly and exclusively for a sufficient period of time to give title by adverse posses-
sion, cannot be attacked by either the trustee or the beneficiary.[2] A trustee is not estopped from bringing an ac-
tion to recover the property because of the fact that the trustee was a party to the conveyance, and therefore,
since a right of action remains in the trustee, both the trustee and the beneficiary are barred by failure of the
trustee to act within the proper time.[3]
A purchaser in possession under a conveyance by the beneficiary acquires, after adverse possession for the
requisite period oftime, a good title as against both the trustee and the beneficiary.[4]
[FNI] Merriam v. Hassam, 96 Mass. 516,14 Allen 516,1867 WL 5522 (1867).
As to adverse possession against trustees and beneficiaries, generaBy, see § 167.
[FN2] Waterman Hall v. Waterman, 220 Ill. 569, 77 N.E. 142 (1906).
[FN3] Meeks v. Olpherts, 100 U.S. 564,25 L. Ed. 735 (1879).
[FN4] Thompson v. Carmichael, 122 Pa. 478, 15 A. 867 (1888).
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AMJUR ADVERSE § 231
Page 2
3 Am. Jur. 2d Adverse Possession § 231
rights reserved.
AMJUR ADVERSE § 231
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AMJUR ADVERSE § 232
3 Am. Jur. 2d Adverse Possession § 232
American Jurisprudence, Second Edition
Database updated November 2010
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
III. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
9. Life Tenant, Remainderman and Reversioner
Topic Summary Correlation Table References
§ 232. Generally
West's Key Number Digest
West's Key Number Digest, Adverse Possession €o=4, 10
West's Key Number Digest, Life Estates €o=8
A.L.R. Library
Page 480 of 665
Page I
What acts, claims, circumstances, instruments, color of title, judgment, or !'hing of record will ground ad-
verse possession in a life tenant as against remaindermen or reversioners, 58 A.L.R. 2d 299 § 1.
It is a general rule that a life tenant cannot possess adversely to a remainderman,[l] although the contrary
result has been reached under certain circumstances.[2] Since the life tenant is entitled to possession and the re-
mainderman or reversioner is not, no adverse possession by the former against the latter is possible until the lat-
ter's interest becomes a present interest, and it is immaterial that the life tenant claims a larger interest under col-
or of title or informs the remainderman or reversioner that the life tenant claims an estate in fee simple or does
both.[3] The statute of limitations never runs against a remainderman or reversioner during the existence of the
life estate, for the reason that no cause or compel1ing right of action is in the remainderman or reversioner dur-
ing the life estate.[4]
Observation:
That prior to the termination of the life estate the remainderman or reversioner can sue under the local law to
quiet title, remove clouds, or determine adverse claims is not ordinarily significant on !'he question whether the
life tenant's possession is adverse. While in some jurisdictions since the remainderman can bring an action to
have title quieted as against an adverse possessor before the remainder interest becomes possessory, the period
of adverse possession begins to run as soon as the right to have the title quieted arises the view in most jurisdic-
tions is that the right of action to have the title quieted does not start the statute running; one reason for !'his lat-
ter view is that if the remainderman is compelled to bring a quiet title action before the remainder interest be-
comes possessory, on penalty of losing title to the adverse possessor, it means that the possessory action, such as
ejectment or trespass, may never be available.[5]
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3 Am. Jur. 2d Adverse Possession § 232
Caution:
Once the statutory period for adverse possession is activated, the subsequent creation of a life estate and re-
mainder neither negates nor suspends the running of the period.[6]
The presumption is that the possession of a life tenant, or one holding under or through the life tenant, is
lawful, and not adverse to remaindermen.[7] The rule has been applied with respect to life tenants in right of
dower[8] and in right of curtesy. [9]
The rule that a life tenant under an instrument cannot hold adversely to persons named remaindermen in that
instrument does not apply where the remaindennen claim the entire fee and immediate right of possession under
an entirely different and conflicting instrument in which they are not remaindermen and to which the life tenant
is a complete stranger.[ to] The fact that claimants are vested with a life estate in property conveyed under a dif-
ferent chain of title does not prevent them from acquiring title by prescription to neighboring property.[ I I] The
period of adverse possession by remaindermans can begin running against the interests of third parties prior to
the date the outstanding life estate on property is removed, and a life tenant's possession may be hostile as to
third parties and can be tacked on to the remainderman's interest.[12]
An intermediate remainder will not be affected by the acquisition, by the ultimate remainderman, of the life
estate under an adverse possession claimed against the life tenant, and this is especially true where it is admitted
that the intermediate remainder is unaffected.[J3]
The remaindermen of a life estate to property conveyed in a probate decree of 1882, who opposed an owner-
ship and partition proceeding brought by another remainderman, did not gain title to the property by adverse
possession, where the predecessors possessed the property as life tenants and did not act in a manner consistent
with an adverse possession claim, and the period over which they could adversely possess as a matter of law was
less than the time required for adverse possession.[14]
[FNI] Eldridge v. Loftis, 723 So. 2d 562 (Ala. 1998).
An individual's residency at a premises of which ownership was in dispute was legally insufficient to
support a claim of adverse possession, where the individual's occupancy was pursuant to a life estate
rather than an estate in fee, and the record contained no evidence of hostile possession, in that the indi-
vidual's occupancy was entirely consistent with her claimed life tenancy and as such did not contlict
with the rights or call for the objection of the record owner, who was the individual's daughter. Berman
v. Golden, 13 I A.D.2d 416, 515 N.Y.S.2d 859 (2d Dep't 1987).
[FN2] § 233.
[FN3] Haynes v. Strange, 232 Ark. 374, 337 S.W.2d 661 (1960).
[FN4] Cotney v. Eason, 269 Ala. 354, 113 So. 2d 512 (1959).
[FN5] McDonald v. Burke, 288 S.W.2d 363 (Ky. 1955).
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AMJUR ADVERSE § 232 Page 3
3 Am. Jur. 2d Adverse Possession § 232
[FN6] Miller v. Leaird, 307 S.C. 56, 413 S.E.2d 841 (1992).
[FN7] Criswell v. Criswell, 101 Neb. 349,163 N.W. 302 (1917).
[FN8] § 241.
[FN9] Dice v. Reese, 342 Pa. 379, 21 A.2d 89 (1941).
The possession of a tenant by the curtesy who acquired a tax title based on failure to pay taxes which it
was the person's duty to pay is not adverse to the remaindermen. Perszyk v. Milwaukee Elec. Railway
& Light Co., 215 Wis. 233, 254 N.W. 753, 93 A.L.R. 395 (1934).
[FNIO] West v. Moore, 193 Tenn. 431, 246 S.W.2d 74 (1952).
[FN I I] Young v. Faulkner, 2 17 Ga. App. 32 1,457 S.E.2d 584 (J 995).
[FN I 2] Robertson v. Dombroski, 678 So. 2d 637 (Miss. 1996).
[FN J3] McCreary v. Coggeshall, 74 S.C. 42, 53 S.E. 978 (J 906).
[FNI4] Ransom v. Bebemitz, 782 A.2d 1155 (VI. 2001).
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AMJUR ADVERSE § 232
END OF DOCUMENT
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Westlaw.
AMJUR ADVERSE § 233
3 Am. Jur. 2d Adverse Possession § 233
American Jurisprudence, Second Edition
Database updated November 20 I 0
Adverse Possession
Theresa Leming, J. D., Bill Lindsley, J.D., and Eric Surette, J.D.
Ill. By and Against Whom Title May Be Acquired
C. Effect of Particular Relationships between Parties
9. Life Tenant, Remaindennan and Reversioner
Topic Summary Correlation Table References
§ 233. When possession by life tenant becomes hostile
West's Key Number Digest
West's Key Number Digest, Adverse Possession €:=4, 10
West's Key Number Digest, Life Estates €:=8
A.L.R. Library
Page 483 of 665
Page I
What acts, claims, circumstances, instruments, color of title, judgment, or thing of record will ground ad-
verse possession in a life tenant as against remaindermen or reversioners, 58 A.L.R. 2d 299 §§ I to 4.
It is widely held that a life tenant, under certain circumstances, can hold the premises adversely to the re-
mainderman or reversioner.[I) Thus, the holding over of a tenant for the life of another may become adverse to
remainderman of the person for whose lifetime the estate was granted.[2) While there is strong support for the
position that a life tenant cannot by acts and words alone establish an adverse holding,[3) there is considerable
authority to the effect that, by renouncing the life estate and declaring ownership of the premises in fee, and
bringing notice of those facts horne to the remaindennan or reversioner, a life tenant may establish an adverse
possession.[4)
Observation:
To enable a life tenant to establish a possession adverse to the remainderman or reversioner, it is generally held
that the life estate must first be extinguished, as by a renunciation, repudiation, disavowal, disclaimer, or aban-
donment of that estate and all right of possession referable to it.[5)
It has also been said that to establish an adverse possession in a life tenant an unequivocal ouster of the re-
mainderman must be shown,[6) and the life tenant's conduct must demonstrate a clear purpose to infringe the re-
maindennan's rights.[7] Moreover, to constitute adverse possession, notice to the remainderman or reversioner
of the hostile holding by the life tenant is essential.[8) Adverse possession may be acquired by the life tenant
where the knowledge is clearly brought home to the remainderman that the former claims the entire estate in the
claimant's own right, hostile to any claim or interest in the land by the remaindennan or others claiming under
the remainderman.[9) Express notice is not generally required, with anything unmistakably amounting to notice
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