Unification of the Doctrines of Adverse Possession and Practical Location in the Establishment of Boundaries

Publication year2021
CitationVol. 78

78 Nebraska L. Rev. 1. Unification of the Doctrines of Adverse Possession and Practical Location in the Establishment of Boundaries


Lawrence Berger*

Unification of the Doctrines of Adverse Possession and Practical Location in the Establishment of Boundaries


I. Introduction ........................................... 1
II. Adverse Possession ..................................... 2
III. The Practical Location Doctrines ....................... 6
A. Parol Agreement ..................................... 8
1. Dispute or Uncertainty ........................... 8
2. Oral or Implied Agreement Setting
Boundary.......................................... 9
3. Possession or Recognition for Some Period of
Time ............................................ 10
B. The Doctrine of Acquiescence ....................... 11
IV. The Requisite Elements of the Doctrine of Acquiescence
and a Comparison With Those of Adverse
Possession ............................................ 12
V. The Relationship Between the Doctrines of
Acquiescence and Parol Agreements ..................... 14
VI. A Suggested Rule ...................................... 15


The central and overarching question in the law concerning boundary disputes is whether the legal outcomes should be governed by the written evidence of title or by the conflicting actual location of the parties on the ground. There is, of course, good reason for the rule, enshrined in the Statute of Frauds, that transfers of interests in land must be in writing. A land transfer system dominated by oral conveyances would be characterized by a great deal of insecurity and uncertainty about that most fundamental question of who owns exactly


what. And it has been convincingly argued that one of the main reasons for the immense productivity differences between developed and undeveloped economies lies in the fact that the title to assets, and especially to real property, is certain and secure in the former countries but not in the latter.(fn1) The exceptions to a general rule favoring the written record must, therefore, be limited to those cases where there is a powerful countervailing policy.


Both legislatures and courts have found that there are situations that exhibit those convincing reasons to depart from the record. The well-known doctrine of adverse possession is, of course, a creature of statute which has existed in some form at least since the thirteenth century. More particularly, adverse possession is based on a statute of limitations that bars any action of ejectment by an owner (hereinafter O) seeking recovery of land from a person (hereinafter P) who has been in possession for more than the statutory period. The policy of repose underlying all statutes of limitation also justifies adverse possession. The notion is that after some extended period of time the law must finally recognize the validity of a long continuing reality. The reason for this is clear. Picture a system where the paper title could never be varied by the facts on the ground. Imagine that in 1840, O owns property to a certain line, and his neighbor P owns the adjoining land. P occupies a fifty foot strip of O's land. The properties pass from O and P to the succeeding generations of each family until 1990 when O's great-great-great grandchild sues P's successors for the strip that


P's family has occupied for 150 years. Do we really want to litigate the "proper" boundary after such a period of time? The problems of proof and dislocation in that kind of a case would be horrendous and solving them would not be worth the candle. So the elapse of a long time, with two neighbors mutually adhering to a certain line, must eventually cause the law to recognize that it is no longer appropriate to look back to determine whether their paper titles dictate a different outcome. If that is so, then the only question is how long a waiting period should the law require before it refuses to countenance that kind of retrospective. The statutes on adverse possession across the United States generally provide for periods of five to forty years.(fn2)

It is interesting that there is a conflict between the rules governing adverse possession and the widely recognized policy of repose that is said to underlie it. This is so because, though the original statutes of limitations that were the basis of the doctrine purported merely to bar an action of ejectment after a certain period of time, they were construed with a multi-faceted judicial gloss that to an extent defeated the policy. In time some of the states amended their statutes to include the judicial gloss as part of their statutory language.(fn3)

Thus, as the doctrine evolved, it was required, whether by case or by statute, that P's possession be actual, open and notorious, exclusive, continuous, and hostile under claim of right.(fn4) The first four of the requirements all relate to whether the nature of P's physical occupancy is such as to give O notice of a potential hostile claim to his property. They thus have essentially the same policy basis: viz., to assure that O will be in a position to understand that, unless he brings his suit in ejectment before the statute of limitations runs, he will forfeit the title to his property. Those requirements are completely defensible in that they are an attempt by the courts to define exactly the kind of physical relationship to the land that the statute of limitations contemplates before its mandated transfer of ownership can occur. The court-invented requirement of hostility under claim of right is of a different character, however; it pertains not to physical but to intangible matters, including questions concerning the possessor's intent and the nature of the relationship between the two parties. It is submitted that those courts that have invented requirements concerning possessor intent have drifted far from any defensible rule.


There are different views in the various states on the question of what possessor intent is required. Some states mandate that she be in good faith and be unaware that she is trespassing on her neighbor's property.(fn5) Other states take the opposite position that, in order for her possession to be hostile, she must intend to take the property knowing full well that she is a trespasser.(fn6) And in some states if P is occupying up to what she mistakenly thinks is the true line, she will get title by adverse possession, but only if she intends to claim title up to where she possesses, true line or not,(fn7) while, on the other hand, if her intent is to claim only what she is legally entitled to, adverse possession will not lie.(fn8) Perhaps most of the states take the position that P's state of mind is irrelevant (fn9) is clearly the best view. It is what P is doing, not what she is thinking, that has a bearing on whether O's attention has been called to the fact that he must sue promptly or lose his land. The only view requiring some form of possessor intent that has a reasonable argument in its behalf is the view demanding that she have a pure heart if she is to get title by adverse possession. The argument would, of course, be that a person should not benefit from


her consciously wrongful act.(fn10) But it is submitted that such a requirement universally applied would have a markedly detrimental effect on the title clearing function of the doctrine of adverse possession. As a matter of statutory interpretation, it is clear that since ejectment will lie against P for her continuing trespass no matter whether her intent is innocent or wrongful, the statute of limitation barring O's cause of action in ejectment should likewise apply to bar his right irrespective of her intent.(fn11)

The "hostility" requirement properly interpreted should merely mean that the possession is without O's permission or that of his authorized agent.(fn12) Permission, in the sense used here involves a situation in which an owner expressly authorizes another person, whether she be a tenant, licensee, or contracting buyer, temporarily to use or occupy his land. The without-permission rule has been universally followed.(fn13) It performs the same policy function of giving O appropriate notice as has been discussed above. Thus, if O gives P temporary license to possess a strip of land along the border between them, it is implicit in the giving of that authorization, first, that O is asserting his ownership, and second, that P is acknowledging O's superior position. The latter point is particularly important because P's acknowledgment causes O to think that P is not claiming against him and, therefore, there is no necessity that he sue to protect his interest.


In summary, there is a conflict between the rules governing adverse possession and the policy of repose that underlies it. In attempting to prevent O from losing his property without being fairly apprised of P's possible claim against him, and for other less defensible reasons, the courts have required the possessor to prove some additional elements not appearing in the statute, with the consequence that not all long-standing possessions will result in the transfer of ownership that the policy of repose would seem to call for. Such transfer would not occur in those cases where P originally took possession with O's permission or, unfortunately in some states, where P does not have the particular state of mind required in that jurisdiction.(fn14)


The basic idea behind the law of adverse possession is contained in the name of the concept itself, i.e., the relationship between the parties must be adverse or hostile to each other. This leaves a huge gap to be filled: what about cases where the parties mutually consent to a certain boundary between them? If P by a...

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