Daily Development for Thursday, April 1, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu
CONSTITUTIONAL LAW; TAKINGS; REGULATORY TAKINGS; ADVERSE POSSESSION: Mississippi
Supreme Court concludes that concept of adverse possession constitutes a taking
of property without just compensation in violation of U.S. Constitution.
Temm v. Theef, 999 So. 2d 300 (Miss. 12/25/03)
Victor Temm, owner of a 2400 acre parcel of land, brought suit to eject
defendant Romeo Theef from a five acre portion of his property. Theef defended
on the grounds of adverse possession, arguing that he had occupied the property
continuously for twenty years and paid taxes on it for that period. The property
was timbered property.
At trial, Timm established that the defendant, who owned property next to Timm’s
land, in fact had been an employee of the local county assessor’s office and
became aware that the description of Timm’s property in the county tax records,
through some official error, omitted these five acres. Timm’s tax parcel was
identified by an incorrect description, and Timm had, for some years, paid only
the tax bills received, and thus was in default on the taxes on this parcel.
Seizing an opportunity, defendant promptly paid the delinquent taxes and posted
“no trespassing” signs on the property, and constructed a series of barbed wire
fences running from tree to tree along the internal boundary of the five acres.
Defendant did not fence the outside boundary of the property where it abutted
his own land, and his own land was not otherwise fenced. Thereafter, defendant
periodically went on the property, accompanied by persons who later could
testify as to activities there, and, of course, continued to pay the taxes.
Temm, on the other hand, testified that he periodically traveled the boundaries
of his property, but did not observe anything that made him suspicious of an
adverse possessor. He noticed the wire fencing strung between trees, the did not
follow it through to see what it contained, assuming that it had been placed
there by some predecessor in interest to him. The “no trespassing” signs were of
a character that could be bought at the local supply store, and Temm himself
periodically placed such signs on trees when problems with hunters arose. He
testified that he had no reason to believe that either the signs or the wires
represented that there was an adverse possession going on.
The trial court ruled that the fact that defendant had set out deliberately to
seize the property by adverse possession was not a factor that disqualified him
from acquiring such title. The test of hostile intent in Mississippi did not
require that there be a good faith belief in ownership. And there was no
question that defendant’s objectives were otherwise “hostile.” The trial court
further concluded that the defendant’s actions clearly were within the range of
activities found to satisfy the test of “continuous, actual, and exclusive” as
applied in prior Mississippi cases. Further, there was no question that
defendant had paid the taxes on this parcel, and that Temm had not.
Temm’s lawyers, anticipating that Theef was building a very nice adverse
possession case, obtained leave to amend their complaint to assert that if
adverse possession was found in this case, the consequent loss of title would
amount to a taking of Temm’s land without just compensation, in violation of the
United States Constitutional protections set forth in the Fifth Amendment and
made applicable to Mississippi in the Fourteenth Amendment.
The trial court granted leave to amend, and took arguments on the issue, but
rejected the claim. On appeal, the Mississippi Court of Appeals reversed the
determination that defendant in fact had been in actual possession of the land,
concluding that the defendant’s acts did not correlate to those of a true
possessor.
The Mississippi Supreme Court reversed the finding of the Court of Appeals,
pointing out that, as the trial court had found, numerous Mississippi cases had
awarded adverse possession title on the basis of possessor acts no more
significant than these. The property, in fact, was unoccupied wilderness, and
defendant had done as much, if not more, than most actual owners would do. And
for twenty years Temm had not challenged defendant. The fact that Temm had never
become actually aware of the challenge to his title was of no consequence, the
court pointed out. The test is whether possession is objectively “open and
notorious,” and fencing and signs are two important indicia of a possessory
claim. The court noted that the fences in fact excluded Temm from traversing
across his land and entering the five acres. Temm did not become aware of that
characteristic of the fences because he failed to follow the fence line when he
saw it from the property boundary.
On the question of the application of the “Takings Clause,” the court reversed
the trial court and, in a decision that appears to be unprecedented in American
real property jurisprudence, concluded that the application of adverse
possession doctrine in the case of a deliberate possession aimed at the taking
of property is in fact a regulatory taking of an owner’s land. The court
expressed frustration that it could not simply amend the common law to clarify
the doctrine, but Mississippi statutes had articulated the basic common law
concepts, and the court had clearly interpreted legislative intent in prior
cases. Therefore, the court had to conclude that the outcome in of adverse
possession doctrine was what the state of Mississippi intended to occur, and
thus it had to contend with the question of whether such an outcome was
constitutional.
The court noted that an application of the leading cases on regulatory takings
law seemed in fact to make this question rather straightforward. There was no
question that all value in Temm’s land had been taken, by state action. Further,
there was no question that Temm had not been engaged in “nuisance” activity or
was otherwise using the land in a way that invited an application of the police
power. The state was taking Temm’s land exclusively for the purpose of pursuing
a goal of securing good title. This was a generalized public good, which the
court acknowledged to be within the proper scope of the state’s police power.
But in this case, the court concluded the outcome was an inappropriate
penalizing of Mr. Temm, imposing upon him an inappropriate burden of supporting
the public goals.
The court limited its ruling to the facts of the case, commenting that there
might be some greater level of justification for application of the adverse
possession doctrine if an adverse possessor had acted in good faith belief of
ownership. Although the level involvement of the “true owner” would be the same,
the relationship of the adverse possessor’s good faith actions to the land title
might be more consistent with the traditional role of equity.
In response to defendant’s argument that adverse possession law was part of the
common law definition of property that came to this country from England, and
thus its application was in fact consistent with property, the court had this to
say:
“Modern concepts of adverse possession have little in common with the basic
notions of prescription that was part of the common law. Here is Mississippi,
the state legislature has rearticulated the doctrine, added new requirements
(such as payment of taxes) and redefined the notions of hostile and open and
notorious possession. Under these circumstances, we conclude that positive
action of the state has, in effect, has created a new concept of property rights
and has not simply restated the concepts that existed in sixteenth century
England.”
Nevertheless, in the end, the court did not grant any relief to Temm because he
had not named a party defendant that had in fact engaged in an unpermitted
taking. The courts were simply following the legislature. The defendant had
asked the courts if the law applied to him. The proper defendant was the State
of Mississippi, which was not a named defendant.
Comment: The editor is unable to discern a principled difference between the
court’s ruling on the granting of adverse possession to a simple thief, as was
the case here, and the application of the doctrine in general. If this case
stands, it would appear to be the end of adverse possession doctrine in most
jurisdictions where the doctrine arguably is a creature of state statute. In
fact, if this were a real decision, and not an April Fool, the editor would
recommend that legislatures nationwide commence promptly a review of the status
of their adverse possession laws and seek review of the legitimacy of those laws
before faced with a significant damages action in a properly filed case.
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