Few legal concepts seem as unjust as adverse possession. This legal form of stealing involves one person becoming the owner of another’s property, usually that of a neighbor, simply by using it continuously and openly for a period of time set by statute (10 years in Missouri; seven years in Arkansas; as many as 21 years in some other states).
To obtain title to real estate by adverse possession, the party claiming the property must prove various elements to the judge or jury, though the four elements involve vague, inconsistent and overlapping terms. The claimant’s possession of the neighbor’s land must be shown to be:
- continuous for the required time period
- open and hostile and notorious
None of these words, in the context of the law of adverse possession, is used with its ordinary meaning. Each state has a body of case law in which these elements are interpreted in light of the facts before the court. The courts, in thousands of cases, have wrestled with the meanings of these words to reach inconsistent results. No lawyer taking either side of an adverse possession case can be very confident in describing the probable outcome, except for one result: the parties will spend a pile of money and become permanent enemies and lousy neighbors, even if the disputed area of real estate is only fifty square feet.
In Murphy v. Holman, an opinion issued June 9, 2009 by the Missouri Court of Appeals for the Western District, the appellate court went to great lengths to reverse the trial court’s decision to allow Murphy to keep a strip of land that had been on Holman’s side of an old fence. From a claimant’s point of view, every fence is a boundary fence. In reality, fences are placed somewhat close to boundaries, but often stray, due to difficult terrain, lack of a well-marked boundary, and other factors. Often nobody knows when the fence was built or why it was built where it was built. Holman and Murphy both assumed that the old fence was on the boundary line when they acquired neighboring farms.
Decades after Murphy and Holman had become neighbors, they agreed to have their common boundary line surveyed. The surveyor indicated that the three-eighths’ mile boundary line was parallel to the old fence, but that the fence was on Murphy’s property. Murphy started clearing a fence row and building a new fence on the actual property line. Holman objected and Murphy’s new posts were pulled up and thrown over the old fence.
Murphy sued Holman for trespass. Holman countersued Murphy, asking the court to determine that the title to the disputed strip of land (amounting to about an acre and a half) was hers under the doctrine of adverse possession. Holman also asked for damages resulting from Murphy’s clearing of “her” land. Please keep in mind that Murphy’s deed included the disputed strip. The trial court ruled for Holman, awarding damages to her for Murphy’s trespass on land described in his own deed, and determining that Holman now owned this disputed strip.
Did Holman have actual possession of the strip? The appellate court reviewed case law that indicated whether possession is “actual” depends on the situation. If the land is “wild land,” then actual possession doesn’t require much of a physical presence by the claimant. For agricultural land, the courts look for more indications of actual physical possession. Allowing cattle to graze on a strip of another’s land and occasionally mowing it, hunting on it or cutting wood on it, according to cases cited, were not enough to show actual possession. Holman’s cattle may have grazed on the narrow strip between the property line and the fence, and Holman may have repaired the fence: the appellate court said that these actions were not “actual possession” but “occasional trespasses.”
Because Holman did not have “color of title,” which means that she didn’t have any kind of deed to the disputed property, even one with an erroneous legal description, the court noted that she had a high threshold to justify why she should get Murphy’s property. Murphy had a deed, after all, and paid the taxes.
The appellate court’s reversal indicates that the trial judge misapplied the law to the facts. In reality, there are so many appellate opinions on adverse possession cases, that a lawyer, trial judge, or appellate judge can find precedents for a ruling on any set of facts, pro or con. Murphy and Holman each spent thousands for a trial and appeal. Holman won at the trial level, and Murphy won on appeal. What a waste of money and judicial resources!
Wouldn’t it make more sense for the legislature to eliminate adverse possession, so that people could be confident that the land described in their deeds was theirs, without requiring them to defend their titles in courts?
Title insurance often doesn’t help in adverse possession cases, because claims of parties in possession are excluded from the policy coverage. Determining whether a party was in possession requires a lawsuit, which the title insurer may or may not defend. If the title insurer defends, it does so with a “reservation of rights,” which can mean that it will not cover the loss of value even though it covers the cost of defense.
Sometimes, legal descriptions of real estate overlap or leave gaps. Suits to resolve these problems do not require the noxious doctrine of adverse possession.
In states with lots of absentee landowners, adverse possession is economically attractive to resident owners, since it tips the legal balance their way. A legislature doesn’t have much to gain by trying to protect absentee owners, unless those absentee owners are politically powerful. This set of tensions may explain why the time period for adverse possession is only seven years in Arkansas, but 15 years in Oklahoma, where oil, gas and mining interests have traditionally had great political power.