Point of Beginning

Examining Adverse Possession in the United States

August 19, 2013
Hostility in adverse land possession

The doctrine of adverse possession has a particular fascination for me, but interest in this topic goes far beyond the surveying profession. Attorneys, employees of government agencies and the general public all become enthusiastic when squatters’ rights or trespass are mentioned. Many surveyors and attorneys have a good working knowledge of the basic principles involved, but beyond these building blocks exists a broad range of complex, confusing, and sometimes contradictory precedent that is unique to every jurisdiction.

In researching common and statutory law for this book, I have tried where possible to emphasize cases that either set or follow established precedent. However, some opinions that have been superseded by statutory authority or overturned by later cases are included to illustrate contentious issues. These contrary opinions are clearly indicated as such, and the chronological presentation of opinions allows the reader to develop a feel for the strength of the current positions on various elements of the doctrine in each state.


Chapter 1: Doctrine of Lost Grants (presumed grant)

This idea of the lost grant is presented by various courts in two different forms. One variation is a conclusive presumption that may not be rebutted even in the face of contrary evidence. This convenient legal fiction–often applied in the face of a complete lack of evidence–presumes the existence of a written grant for the disputed property right even when the existence of the grant is a practical impossibility.

This conclusive presumption has its roots in English common law. Since the English statute of limitations applied only to situations involving the fee simple ownership, the English courts developed the common law doctrine of presumptive grants to address situations where an easement rather than the fee was at stake. This conclusive presumption may not be applied until after the passage of sufficient time to fulfill the statute of limitations. This also accounts for the disparity in time requirements for adverse possession and prescriptive easements in some jurisdictions.

While the presumptive grant was originally intended to apply only to easements, this doctrine was expanded in many U.S. jurisdictions to include situations involving fee simple ownership.

A separate perception of the presumed grant allows the claimant to “prove” the existence of a lost document. This is a rebuttable presumption and must be supported by legitimate evidence presented to the court. As opposed to the first premise described above, this presumption will not hold where the existence of the grant is a legal impossibility and is not always bound by the span of time mandated in the statute of limitations.


One of the more entertaining cases from Connecticut is Price v. Lyon: 14 Conn. 279 (1841). This dispute involves an adverse possession claim by an individual against the congregation of a church for a fractional interest in a church pew.

The events that led up to this opinion also include charges of personal assault. It appears that several members of the Lyon family were occupying the pew in question in anticipation of a worship service. Mr. Price, armed with a chain and padlock, arrived at the church and threatened to lock the Lyons inside the pew if they did not vacate it immediately, claiming he owned a fractional interest in the pew.

When the Lyons refused to leave the pew, Price attempted to lock the family inside. This in turn led to a tug-of-war between the parties with the Lyon family attempting to avoid being forced to climb over the top of the pew in order to leave the church.

The dispute escalated with the arrival of Lyon Senior. His late arrival instigated another shoving and pulling match. Ultimately, the combined efforts of the Lyon family were sufficient to take the chain away from the claimant, injuring his hand in the process. This may well be considered proof of “hostile” intent.

On a more practical note, this opinion describes the relationship that exists between tenants in commonand the additional difficulties that arise when one tenant adversely claims against other owners of a partial interest. As between tenants in common, the possession of one is the possession of all. As each may rightfully possess the whole, liable to account, such possession is not a disseisin of his cotenants. But when a stranger enters on the common property, claiming title adversely to one of the tenants, and actually excludes him from the possession, and takes the profits, this is a disseisin. Where claimant and defendant are tenants in common, actual ousterof the remaining co-tenants is required in order to prove an adverse claim.



Adverse possession opinions sometimes include entertaining examples of heated debates over land ownership. Wright v. Wright: 270 Ga. 530; 512 S.E.2d 618 (1999) describes the “overbearing and tyrannical ways” of the local patriarch (called “Aitchey” by the locals). The court also notes “ill will between himself and his siblings over ownership of the farm.” The various co-tenants were afraid to discuss their interest in the farm with Aitchey, and one witness concludes that Aitchey “probably would have killed them” or “run them off” if they had asserted a claim of ownership. Ultimately, other family members decided it would be more prudent to await the death of this firebrand before attempting to settle title issues related to the family farm.

Meanwhile, Aitchey and his wife paid off the mortgage and also dealt with annual taxes on the land. Aitchey claimed (falsely) that he had removed his father’s name from the deed and then conveyed a portion of the property in fee simple to Jackson County. He never consulted with the other co-tenants or sought permission for these acts. Ultimately, Aitchey’s heirs were successful in their claim of fee simple title to the remaining portion of the disputed farm.

On a more practical note, this ruling provides another example of claims between co-tenants. Georgia statute currently supports the general premise that claims between tenants may not succeed if the claimants have not actually ousted the remaining owners. In addition, the general rule for proceedings of this type holds that any use by one tenant is presumed to be for the benefit of all remaining co-tenants, even if the other tenants reside elsewhere.

Wright v. Wright demonstrates the difficulties inherent in a claim between co-tenants, but also supplies a counterpoint to the general presumption. And while exclusive possession, payment of taxes, and the making of improvements alone do not necessarily establish an ouster, a conclusion of prescriptive title may be drawn where there have been unequivocal acts, such as selling or leasing the premises, or a part of them. In addition, a cotenant in possession may satisfy the “express notice” criterion by showing either: (1) that actual notice of the adverse party was “brought home” to the nonpossessory cotenant; or (2) that there are unequivocal acts, openand public, making the possession so visible, hostile, exclusive, and notoriousthat notice may fairly be presumed. In addition, this opinion concludes that conveyance of the entire fee simple estate to a third party stranger may well constitute ousterof remaining tenants.


North Carolina

Color of title has been described in many different ways, but a particularly entertaining and enlightening explanation may be found in Johnston v. Case: 131 N.C. 491; 42 S.E. 957 (1902):  But the color of titleis not title. It is only a shadow, and not a substance; but for the purpose of quieting titles and to prevent litigation about State claims, the law has provided that where one enters into the open, notoriouspossession of land, under color of title – this shadow – and remains continuously in said adverse possession for seven years, claiming it as his own, the law will protect such possession; that such long possession under color of title, in the eyes of the law, ripens such color into title. But that shadow, or color, only extends to the boundaries marked by the color – the deed – and can extend no further; though they may be circumscribed, as they will not even cross another line, unless there is actual possessionacross that line, or lappage, as it is called. And if there is a general description, and also a particular description or boundary lines, they will control, and the general designation will only be considered for the purpose of identifying the land. This is so where the land is actually conveyed and the title passed under the deed.

Note that this description also considers the effect of color of titleon a claim that attempts to extend beyond the limits described in the color document.



An extremely complex decision surfaces in 2011, raising again the possibility of adverse possession of submerged lands. Scott. v. Burwell’s Bay Improvement Association: 281 Va. 704; 708 S.E.2d 858 (2011) revolves around an acre of riverfront property owned by Burwell’s Bay. In 1925, a pier and several associated structures were constructed by predecessors in title of Scott under permit from the state. Scott attempted to claim the submerged lands occupied by the piers on the principle of adverse possession. An alternative claim was for a prescriptive easementover the same area.

The justices began by emphasizing that title to submerged lands of navigable rivers remains vested in the state beyond the mean low water mark. However, owners of properties adjacent to the river have certain riparian rights, including the right to construct a pier or wharf out to the line of navigability, subject to state regulation.

These riparian rights are apparently subject to adverse possession. This decision reflects opinions from other states in which even where adverse possession against the state is prohibited, a claimant may at times win a prescriptive right that is superior to all other title except that of the state.

Prescriptive easements follow many of the same principles that are applied to adverse possession claims, but this opinion emphasizes the 20-year requirement in Virginia for a prescriptive easement as opposed to the 15-year statutory requirement for an adverse possession claim. In addition, while tackingis generally allowed in prescriptive easement claims, the court denied a request by the claimant that he be allowed to tack possession of previous owners on the grounds that the manner in which the previous possessions occurred was not proved adverse.

The facts of the case include the observation that previous proprietors of the wharf allowed the general public to use the wharf, thereby defeating the “exclusive” requirement. In addition, the wharf was destroyed in 2003 by a hurricane, and the four-year period that followed was devoid of any evidence of possession by the Scott family.

One key observation included in Scott v. Burwell’s Bay notes the difficulty of proving adverse possession of submerged lands: Where the land is . . . under the water . . . the acts of [adverse] ownership must indicate a change of condition, showing a notoriousclaim of title, accompanied by the essential elements of adverse possession.

Likewise, a claim to riparian rights over navigable waters presents a unique condition of the property that requires a special consideration of the “use to which the property may be adapted.” The construction and maintenance of permanent structures in a river clearly “indicate a change of condition, showing a notorious claim of title” to riparian rights. Accordingly, there is no question that the Bracey family’s ownership of the pavilion constituted both an “actual” and “hostile” assertion of the right to occupy the riparian area. Note that the “Bracey family” referred to above was a predecessor in title to Scott. Although the Bracey family had used the riparian area for 14 years, the court declined to award it the disputed area. Ultimately, Burwell’s Bay Association was allowed to construct a new pier extending into the submerged lands formerly occupied by the Bracey family.



Occupation that originates in a mistaken belief as to the location of the true boundary may still result in a successful adverse claim as seen in Johnson v. Kirk: 648 S.W.2d 878 (1983). In an interesting twist, the Kentucky courts have linked this stance (commonly referred to as the “majority rule,” see Chapter 1) with the champerty statute KRS 372.070(1).

When the Kirks purchased their residential lot in 1975, they built a fence along a marked line that they assumed was the boundary line with the adjoining tract.  The Johnsons bought the adjoining lot in 1978. A later survey introduced as evidence indicates that a portion of the fenceis on the Johnsons’ land. While the duration of the adverse use is not clearly noted, it is clearly less than 15 years and could not be more than eight years.

In this instance, the claim of the disputed strip by Johnson was defeated due to the champertous nature of the conveyance to him from the previous owner. The court ruled the conveyance void for that portion of the adjoining lot adversely possessed by the Kirks.

It was considered significant that the Kirks initially believed the fence was on the boundary and only later discovered their mistake. Even more fascinating is the observation that: Johnsons’ grantor might well have had a cause of action and recovered the land in dispute had he sued in ejectment.  But he did not do so, and the law is well-settled that one cannot sell a lawsuit.


 Published by 2Point Inc., “Rooted in Stone: The Development of Adverse Possession in 20 Eastern States and the District of Columbia,” includes discussion of more than 600 rulings from 21 jurisdictions. The 386-page hardbound book can be ordered by contacting Kline at kkline@buncombe.main.nc.us.