Daily Development for Tuesday, September 7,
Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
ADVERSE POSSESSION; REQUIREMENT OF ACTUAL
POSSESSION: Neighbor did not adversely possess property when he plants gardens
and mows property with intent of ownership for statutory period.
Walker v. Murphree, 722 So.2d 1277 (Miss.App.
This case sustains a trial court's ruling on
the facts, and emphasizes that the appeals court indulges a presumption in favor
of the trial court. Nevertheless it is a helpful addition to the compendium of
cases dealing with whether mowing lawns and planting can constitute adverse
There was a ditch near the border between two
properties, but in fact the legal boundary of one of the properties extended
some distance (the court is unclear, but it appears to be at least fifteen feet)
beyond the ditch.
The predecessor of the present defendant
regularly mowed the lawn on his side of the ditch (his neighbor's property) and
his tenants planted gardens there. Later, that party sold the property to
defendant, and in doing so informed him that the property line was the ditch,
although it is likely that he knew otherwise.
The record otherwise contains no other
evidence of permission or, for that matter, expressions of hostile intent either.
The trial court ruled, and the appeals court
affirmed, that mere mowing and planting, even, presumably, with hostile intent,
is not sufficient possession to warrant the conclusion that adverse possession
occurred. Defendant was required to remove three houses that he had moved onto
the property, but was not held liable for punitive damages.
Comment 1: For a contrary holding, see
Brennan v. Manchester Crossings, Inc., 708 A.2d 815 (Pa. Super. 1998)., the DIRT
DD for 12/22/98, on the DIRT website,
<http://cctr.umkc.edu/dept/dirt>http://www.umkc.edu/dirt/ Comment 2:
Where unpermitted lawn mowing or yard maintenance does not establish title by
adverse possession, is there nevertheless an argument that a prescriptive
easement has arisen? If the activity is regular and unpermitted, the argument
seems strong. Courts, however, have seemed reluctant to permit the loss of
rights by this activity, even though they might permit the creation of an
easement of passage on the basis of use no more obvious or frequent than would
be the case with lawn mowing. Perhaps the critical issue is not the substance of
the use, but the question of whether the use actually is a permitted one,
despite the fact that no evidence exists. After all, if my neighbor finds it
convenient to mow part of my lawn, this is doing me a favor, and I may be less
likely to object.
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