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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