Daily Development for Friday, April 5, 2002

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: Existence of a three foot high retaining wall in the center of an easement area is evidence of an adverse claim, and, although origin of wall is unknown, it is proper to draw inference that uphill owner's predecessor built wall, thus transferring burden of proof on hostility of claim to downhill owner.

Fatone v. Vona, 731 N.Y.S.2d 521 (A.D. 3 Dept. 2001).

Plaintiff held an easement for use of a 12 foot strip of Defendant's land which abutted Plaintiff's property. A retaining wall existing since at least 1959 was thought by Plaintiff and Defendant to mark the boundary between their properties, but in 1999 Plaintiff discovered that the wall had been built beyond Plaintiff's property line, in the middle of the easement area. The court held that although both parties were mistaken as to the location of the boundary line, Plaintiff had a right of title to the disputed land under a claim of adverse possession.

The primary holding of the case was that the fact that the Plaintiffs were occupying the area to the retaining wall through a mistake as to their actual boundaries made no difference for adverse possession purposes. The wall itself was a physical manifestation of an adverse claim, and its continuous occupancy of the easement area established a continuous, open and notorious possessory act. Even though the wall was not an "enclosure," the court held that the area on the Plaintiff's side of the wall also had been adversely possessed. Since the wall divided the Plaintiff's area of control from that of Defendants, little more was necessary for Plaintiffs to establish that their activities between their actual boundary and the retaining wall constituted adverse possession.

Note that the Plaintiffs had in fact assumed that the easement was a twelve foot strip beyond the wall, and had regularly used that strip for access to parking, giving them, in addition to the adverse title on their side of the wall, a new prescriptive easement on the other side.

An interesting feature of the case was that the wall in fact did not run along the entire boundary between the two neighbors. There was an area between the end of the wall, which ran north/south, and the east/west boundary line, that was not demarcated by a fence or a wall. Plaintiffs had always assumed that their title ran in a straight line from the wall to the boundary, and had cultivated, mowed, and picked pears in that area, apparently exclusively. They claimed title by adverse possession of that area. The court seems to be willing to permit such a claim, although it acknowledges that domestic cultivation is not necessarily a hostile possessory act in every case.

Note that here the activity was an extension of activity that took place in the area behind the retaining wall, and the nature of the adverse claim apparently extended into the unmarked boundary area.

Comment: DIRT has reported on a number of cases, going both ways, involving residential area mowing and cultivation. The twist here was that little three foot wall.

The editor has never seen the "presumption of construction" invoked in quite this way to overcome burden of proof problems in an adverse possession case. It may a common practice in trial courts.

Perhaps the editor should get out more. No, the editor definitely should get out more.

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

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