Daily Development for Wednesday, March 21, 2001

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri


ADVERSE POSSESSION; MEASURING PERIOD: New Jersey travels back in time, embraces 60 year adverse possession requirement.

J&M Land Co. v. First Union Nat'l Bank., 2001 N.J. Lexis 176, No. A.5. Sept. Term (2/27/01)

Landowner owned a large tract of undeveloped marshland near a highway. A neighbor, also owning a substantial tract of undeveloped marshland, leased property to a billboard company for the erection of billboards, and the lease described some of landowner's property. The billboard company built two billboards on landowner's property, some

200 feet from the boundary. These billboards were there for 39 years.

Landowner paid taxes on the lease site for the entire period. No development other than the billboards occurred on either property. After

39 years, Landowner sued the neighbor for trespass, demanding the rents collected on the leases. The neighbor responded with a petition for a declaratory judgment that it had obtained a prescriptive easement on the site.

The case found its way to the New Jersey Supreme Court because of an apparent conflict in the New Jersey statutes concerning adverse possession law. Over time, New Jersey courts have honored one or another of the laws, and there is precedent, therefore, which itself conflicts.

The parties argued to the court that one of the litigants had the power to determine which adverse possession statute applied. Not surprisingly, they differed as to which litigant ought to have that right. They agreed, however, that the same statute ought to apply both to adverse possession claims and prescriptive easement claims.

The court responded by attempting to reconcile the statutes and to find one absolute test of adverse possession that would apply on these facts, regardless of any "choice" made by a litigant. That statute imposed a sixty year requirement for adverse possession. The court concluded that the possession of the neighbor here necessarily was a claim of complete and exclusive possession, since that is what it conferred to its tenant under the lease, and that therefore the only claim that the neighbor could make sounded in adverse possession, and not in easement by prescription. Since the sixty year period had not been satisfied, the court found for the landowner.

Here are the four statutes at issue:

N.J.S.A. 2A:146 provides "every person having any right or title of entry into real estate shall make such entry within 20 years next after the accrual of such right or title of entry, or be barred therefrom thereafter."

N.J.S.A. 2A:147 provides "every action at law for real estate shall be commenced within 20 years next after the right or title thereto, or cause of such action shall have accrued."

Although the plain language of neither of those two statutes specifically establishes title in the adverse possessor after twenty years of adverse possession, they have been construed "to mean that a possession adverse for 20 years gives a title by adverse possession an actual title as distinguished from a mere right of entry." These statutes, of course, are parallel to statutes in many other jurisdictions, which have been construed the same way. We will call these the "standard" statutes. It's not clear why New Jersey needs two of them, one in passive voice and one in active voice.

The two other pertinent statutes provide for substantially longer adverse possession periods, and specifically state that they are for the purpose of establishing an adverse possession claim. N.J.S.A. 2A:1430 provides as follows:

Thirty years' actual possession of any real estate excepting woodlands or uncultivated tracts, and 60 years' actual possession of woodlands or uncultivated tracts, uninterruptedly continued by occupancy, descent, conveyance or otherwise, shall, in whatever way or manner such possession might have commenced or have been continued, vest a full and complete right and title in every actual possessor or occupier of such real estate, woodlands or uncultivated tracts, and shall be a good and sufficient bar to all claims that may be made or actions commenced by any person whatsoever for the recovery of any such real estate, woodlands or uncultivated tracts.

N.J.S.A. 2A:1431 provides:

Thirty years' actual possession of any real estate, . . . wherever such possession commenced or is founded upon a proprietary right duly laid thereon, and recorded . . . pursuant to law, or wherever such possession was obtained by a fair bona fide purchase of such real estate from any person in possession thereof and supposed to have a legal right and title thereto . . . shall vest an absolute right and title in the actual possessor and occupier of all such real estate.

New Jersey courts have held that adverse possession for either thirty or sixty years under those two statutes "establishes a full and complete title in the occupier of the land." The statutes appear to provide for a general

60 year limitations period for undeveloped land (land consisting of "woodlands or uncultivated tracts") but to shorten the period to thirty years when the possessor has color of title or when the land is not undeveloped. We will refer to these statutes as the 30/60 laws.

But which statutes really control adverse possession in New Jersey?

To solve this issue, the court embarks on a lengthy exegesis the history of the "consanguinity of our adverse possession statutory history." It notes that the English courts recognized two actions for protection of title, actions real and ejectment actions. By the seventeenth century, the English had established a 60 year statute of limitations on actions real and a 20 year statute of limitations on actions in ejectment. New Jersey was established as a colony in 1664, and of course became a state in

1776. The New Jersey Constitution provides that the common law of England and the English statutes "so much . . . as have been heretofore practiced in this colony, shall still remain in force."

In 1833, the English laws were amended to provide for a single 20 year statute of limitations for adverse possession, providing clearly that any action based upon title is barred after 20 years of adverse possession have occurred. But the New Jersey court noted in this case that the 1833 English amendment did not affect New Jersey law.

In 1787, the New Jersey legislature adopted an earlier version of the

30/60 laws.

But over time the distinction between an action based upon an entry by the "true owner" and an action in ejectment against the adverse possessor disappeared, and in 1799, the New Jersey legislature enacted a 20 year limitations statute on actions in ejectment, which appeared to resolve any question concerning any action to obtain judicial assistance in restoration of title. But the 1799 legislation did not repeal the 1787 legislation, and consequently, an arguable distinction arose between the bar on ejectment and the complete loss of title. In other words, one might own property, but not be able to regain possession of it. [The editor is aware of the absurdity of this result, but is merely reporting what the case says don't blame him.]

In the words of the current New Jersey court:

"That tension [between the 30/60 statutes of 1787 and the standard statutes originating in 1799] has never been clearly resolved. Instead, courts have either ignored the thirty/sixtyyear statutes or the twentyyear statutes while applying the other, or stated that the two sets of statutes are not in conflict. No decision to dat has sufficiently reconciled the two sets of statutes by giving meaning to both."

The two statutes wandered through the decades independent of one another. In 1922, the legislature amended the 30/60 provision to draw the distinction between "woodlands or uncultivated tracts" and other tracts and, in that legislation, provided that "all acts and parts of acts inconsistent with this act are hereby repealed." Nevertheless, the legislature in 1948 and 1951 enacted a statute providing for a form of quiet title action, also permitting an action for damages for the six year period preceding such action. This legislation stated that this legislation superceded earlier statutes dealing with ejectment, and could be used by any person seeking to establish that he was "entitled to possession of or title to the realty." This statute is codified as N.J.S.A. 2A:351.

The court, although noting substantial conflicting authority, and overruling some of it, comes to the conclusion that the 1951 enactment of N.J.S.A. 2A:351 (the "quiet title" statute" effectively precluded reliance on the standard twenty year statutes that remained on the books.

But the quiet title statute did not provide for its own limitations period for adverse possession. Consequently the court here concluded that the legislature must have intended that the 30/60 statute would control.

Since the land here was uncultivated, and there was no color of title, the

60 year statute applied, and the adverse possessor did not acquire title and was liable for damages in the form of rents received for the preceding six years.

Comment 1: The court noted that the legislature was free to disagree with the court's conclusion and establish a different rule. The editor hopes that the legislature does look at the issue, since the concept of "uncultivated land" is not a particularly meaningful concept in many parts of modern New Jersey. Although known as the "Garden State,"

New Jersey in fact has substantial industrial areas that are developed, but could hardly be called "cultivated." (The editor knows this from watching "The Sopranos" religiously.) Does it make any sense to differentiate between cultivated and uncultivated land any more? Is the distinction worth thirty years?

Note that in some states, such as (the editor has heard) Mississippi, "security of title" advocates are plumping regularly for the abolition of the concept of adverse possession altogether. Is this one more chance for New Jersey to bolt from the pack and cut some new law?

Comment 2: The court, in passing, concluded that the same 30/60 statute ought to apply to prescriptive easements, although it concluded, in keeping with the lower court, that the actions in this case necessarily amounted to a claim of title.

Comment 3: The court also danced around another New Jersey adverse possession rule that has always struck the editor as rather silly. In Manillo v. Gorski,, a lower New Jersey appellate court posited the rule that an adverse possession was not "open and notorious" when it consisted of the laying occupation (even by a concrete walkway) of only a small intruding portion from a neighboring parcel. Here, the trial court had applied Manillo to conclude that the building of two large billboards

200 feet inside the boundary of the property was not "open and notorious" because the size and condition of the land made the intrusion hard to gauge.

The editor thinks the original Manillo rule is mischievous in the extreme, and its application by the trial court in this case demonstrates the mischief. Another New Jersey opinion rejected Manillo when the intrusion was not by concrete walkway, but by a fence. Stump v. Whibco, A418895T1 (N.J. App. 9/3/98) (unpublished opinion) the DIRT DD for

9/18/98). Compare Levien v. Fiala, 902 P.2d 170 (Wash. Ct. App.

1995), the DIRT DD for 4/3/96, where the court held that an intruding fence did not put a buyer on constructive notice that there was a possession inconsistent with title. The the editor assumed that the decision in Stump meant Manillo was on its way out. It would have been nice if the New Jersey Supreme Court would have completed the job, but the trial court's ruling became moot when the court concluded that 60 years of adverse possession was necessary, and the editor assumes that it concluded that it had written enough adverse possession law for one day and didn't want to take on Manillo as well.

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

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