Daily Development for
Wednesday, January 13, 2000
By: Patrick A. Randolph,
Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu
This little case raises a
number of issues that the editor found provocative. In addition to the two
entries here, the editor will post a note on a third aspect of the case for
tomorrow's DD.
ADVERSE POSSESSION; PUBLIC
PROPERTY: Waterfront property dedicated to the use of small group of property
owners is not quasipublic property, and is therefore not protected from claims
of adverse possession.
Denman v. Gans, 607 N.W.2d
788 (Minn. Ct. App. 2000).
Owners of waterfront
property in subdivision brought action to establish adverse possession of
property to the waterline as against the inland owners. The inland owners claimed rights pursuant to
the original subdividers dedication of the roads, drives, walks and waterfront
. . . for the use of all the respective owners [in the subdivision]." The
waterfront owners argued that they had adversely possessed against this
dedication because they had built boathouses and docks that effectively
excluded others from using the waterfront in many places.
The trial court held that
the dedication created rights that were quasi public in nature and could not be
subject to adverse possession.
On appeal, the Minnesota
Court of Appeals held that a subdivision dedication to an identified group is
not a dedication to a "quasipublic purpose," in the process
distinguishing a 1908 Minnesota Supreme Court case that appeared to find,
albeit in dicta, in a very similar case, that such "quasipublic"
dedications are possible.
The court nevertheless
affirmed the decision in favor of the inland owners because of the fact that
the lakefront owners were, in effect, cotenants, and cotenants cannot adversely
possess against other cotenants simply by exercising rights passing to them as
cotenants. Since any cotenant could build a dock or boathouse so long as no one
else objected, none of the apparently exclusive uses of the waterfront were, in
fact, "adverse," since there had been no express communication of
intent to challenge the rights of other cotenants. There had been, in technical
terms, no "ouster."
ADVERSE POSSESSION;
PROCEDURE: Constitutional right to jury trial in civil actions applies only to
actions in which jury trial was available at common law, and test of adverse
possession can arise under forms of action in which jury trials are available,
such as ejectment, and where they are not available, such as quiet title.
Denman v. Gans, 607 N.W.2d
788 (Minn. Ct. App. 2000) discussed further under the heading: "Adverse
Possession; Public Property."
Comment: Yes, the forms of
action are still with us. Typically an adverse possessor seeking to affirm his
ownership will bring an action in quiet title, while a "true owner"
seeking to reestablish ownership against an adverse possessor will bring an
action in ejectment. The basic nature of the dispute is the same, but the right
to a jury trial is quite different in each case.
Of course, given the
proper facts, a either the true owner or the adverse possessor can press a
claim under either of the above forms of action. So it behooves a crafty legal
advisor to think about whether facts exist (or can be brought about) so the
disputants have a case satisfying the appropriate form of action.
For instance, if you are
in possession and want a jury trial, you might want to provoke the other side
into physically establishing their possessory claim, so that you can then beat
them to the courthouse with your ejectment action. Readers are urged
to respond, comment, and argue with the daily development or the editor's
comments about it.
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