Daily Development for Thursday, July 5, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

ADVERSE POSSESSION; REQUIREMENT OF ACTUAL POSSESSION: Actual; hostile possession is established where adverse claimant planted 50 trees on the

five foot strip of land and watered and maintained the trees for 18 years.

Ballard v. Harman, 737 N.E.2d 411 (Ind.App. 2000).

In 1978 Harman become the owner in fee simple of a two acre tract of land adjacent to the Ballards' property. As a result of a surveying

error, the description of the property in Harman's warranty deed was incorrect. In 1979 Harman planted fifty cedar trees to the west of some

iron stakes that had been placed on the property as a result of the erroneous 1978 survey. Relying on the survey, Harman believed that

these trees were on his land and continued to fertilize and maintain the trees until 1997.

In 1997, the Miami County Surveyor surveyed the land and determined that the boundaries to Harman and the Ballards' land overlapped. Relying on

the 1997 Survey, Michael Ballard entered the disputed strip of land and cut down forty-one of the cedar trees planted by Harman. Harman

subsequently filed the present action for damages resulting from the tree cutting and to quite title. The court found that the Ballards knew

of the existence of the trees for nearly 20 years and never objected. Harman maintained the trees openly for a period of 18 years, and he

never disavowed his right to posses the property from the time he planted the trees.

The court found that Harman's reliance on the incorrect placement of the markers, coupled with the other action, was enough to establish

notorious, exclusive, open and visible possession of the disputed strip for the requisite statutory period of ten years, and that Harman

therefore, acquired title to the strip via adverse possession.

The court, however, denied Harman's treble damages claim for criminal trespass, as the Ballards were acting on a public survey, despite their

knowledge that Harman disputed their claim, and therefore lacked criminal intent. Note: The court also denied a claim by Harman that he had established a

prescriptive easement over certain other land adjacent to a granted easement. Due to the survey area, he had used Ballard land not within

his easement as part of the access road. The court noted that Indiana establishes a 20 year requirement for prescriptive easements, but only a

ten year requirement for adverse possession. It held that the twenty year requirement had not been met, and that Harman's use of the property

had been intermittent and did not rise to the level of adverse possession.

Comment 1: The question of whether maintenance of ornamental plants or mowing of lawns can constitute adverse possession is one that arises

frequently, but is not uniformly resolved. There is always the significant question of whether the activity was implicitly permissive.

In addition, there is the question as to whether the activity even satisfied the "continuous, actual" requirement, since the claimant's own

physical presence on the adversely possessed property is only intermittent, although whatever the claimant has planted remains on the

land all the time. For another side of the question, see the DD for 9/7/99, on the DIRT website, finding that mowing and landscaping do not

establish adverse possession. That report cites to an earlier DD in which mowing and landscaping were sufficient.

Comment 2: Should we conclude that, at least in these cases, the conclusion as to whether the elements of adverse possession are

satisfied really is a "hide behind" that judges use to mete out their view of substantial justice? Of course, we can't avoid some judicial

activity of this nature, but when important property rights turn on the result, these cases are studied as precedent to make judgments about

future situations - particularly decisions about whether to litigate and whether to insure.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.

ABOUT DIRT:

DIRT is an Internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 ‑ 10 messages per workday.

Daily Developments are posted every workday.

To subscribe to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Dirt [your name]

To cancel your subscription to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Dirt

For information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named "Brokerdirt." But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to Brokerdirt, it is not necessary also to subscribe to DIRT, as Brokerdirt carries all DIRT traffic in addition to the residential discussions.

To subscribe to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Brokerdirt [your name]

To cancel your subscription to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Brokerdirt

DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at: http://www.umkc.edu/dirt/