Daily Development for
Monday, September 15, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

ADVERSE POSSESSION; REQUIREMENT OF ACTUAL POSSESSION; BOUNDARIES: Dirt road surrounding area of claimed parcel adequately defines it, and adverse claimant's activity of cutting a road, clearing openings, buildings structures, storing materials on various parts of the property over a number of years can constitute adverse possession of the entire parcel.

Bryant v. Palmer Coking Coal Co., 936 P.2d 1163 (Wash. Ct. App. 1997).

The land in question consisted of a wooded area bounded on one side by an air strip and on the other by a dirt road. The claimant used the area around the air strip quite extensively, but, although he built some roads through the wooded area and parked some cars there, it was used far less than the balance of the tract. The title holders argued that where there is no defined boundary the adverse claimant must show extensive use of the claimed property so as to demonstrate a claim of ownership.

Indeed, the Washington court quotes language from prior case law that details a rather conservative view of the degree of "notoriousness" necessary to establish adverse possession:

"The acts constituting the warning which establishes notice must be made with sufficient obtrusiveness to be unmistakable to an adversary, not carried out with such silent civility that no one will pay attention . . . . Real property will be taken away from an original owner by adverse possession only when he was or should have been aware and informed that his interest was challenged."

Here, the adverse claimant had built a dirt road along what he believed was the northern boundary of his property. Even though the bulk of the activities were along the southern part of the parcel, and the balance of the parcel was wooded the extended activities on the southern part, coupled with some physical activitiy throughout, and the boundary demarcated by the road, constituted sufficient adverse possession even pursuant to the standards set forth above.

The real battle here, by the way, was over the mineral rights under the adverse claimant's activities. The adverse possession established these mineral rights. The court reversed a trial court finding that the severance of mineral rights from adjacent parcels indicated that that there had been a separate mineral estate created on this parcel. Thus the adverse possessor here got the mineral rights.

The court also discussed the fact that the occasional incidence of strangers landing on the adverse possessor's airstrip did not interfere with the "exclusivity" of his possession. Such occasional uses were assumed to have been carried out with the possessor's implicit permission.

Comment 1: The case stands for the concept of "penumbral" adverse possession identified in a prior Washington case reported in these reports, Lloyd vs. Montecucco, 924 P.2d 927 (Wash. App. Div. 2, 1996) (the DD for March 3, 1997). There was no "constructive possession" here - no argument of color of title (although the facts suggest that such an argument was possible). Rather, the court simply concluded that one does not have to conduct a physical activity on every square foot of a claimed parcel if the nature of the activities demonstrates that an ownership claim is being made over an area broader than the activities themselves. The problem, of course, is showing where the boundaries of such "activity area" lie, and in this regard the possessor here could rely upon the dirt road to the north.

Comment 2: The statement that adverse possession must be so "unmistakeable" as to put an adversarial claimant on notice of a challenge to title is probably an overstatement of the conclusions reached in this case and of the adverse possession doctrine as applied in most jurisdictions. The more modern trend seems to be to acknowledge that a claimant can "build a title" by regularly making use of property, and even where this use might not be physically evident on every square foot of the property during every day of the possession, it can suffice.

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 Stacy Walter at the ABA. (312) 988 5260 or stacywalter@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. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.