Daily Development for Tuesday, September 7, 1999

By: 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. 1998).

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 possession.

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.

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 16, 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

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. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA .

DIRT has a WebPage at: http://cctr.umkc.edu/dept/dirt>http://www.umkc.edu/dirt/