 Anderson dies owning Blackacre

 Executors contract to sell Blackacre

◦ To Sarah Lewis, then to Robert Rives
 Sarah Lewis takes possession (1820-25)
 Sarah Lewis dies in 1835 (Lewis is her heir)
 Tapscott takes possession in 1842
 Action by Cobbs (Lewis’ lessee) against
Tapscott > 1854 for possession
 What does the court state to be the general
rule for a plaintiff to cover in an action of
ejectment?
◦ General rule: Right of plaintiff to recover in
ejectment “rests on the strength of his own title,
and is not established by the exhibition of defects
in” defendant’s title
 Are there an exceptions to the general rule?
◦ Defendant enters under the title of the plaintiff
◦ Defendant estopped to question plaintiff’s title
◦ Entry by stranger on a prior peaceful possessor
 Statement of the holding

In an action for ejectment, the prior possessor (Cobbs) prevails

against the subsequent possessor (Tapscott) even though the
subsequent possessor (Tapscott) can show title in a third person
(Anderson) if the subsequent possessor (Tapscott) has no interest
derived from the titleholder (Anderson)
 Is this rule consistent with rules we study in
Chapter 1?
 What policies justify the rule?
 Should the rule have been applied in Tapscott
given there was no evidence that Cobbs ever
took actual possession?
Root of title
A to B in 1856
B to C in 1874
How do you prove these
D to E in 1934
conveyances?
E to F in 1975
F to G in 1983 Are there any problems?
G to H in 1990
 Plaintiff is both titleholder and possessor of
Blackacre
 Defendant wrongfully floods Blackacre
 Plaintiff sues Defendant for money damages
 Plaintiff unable to prove title
◦ Why?
 Judgement for Defendant?
◦ Why
Root of title (Louisiana Purchase
A to B in 1820
B to C in 1825
C to D in 1850 How does Plaintiff
D to E in 1852 prove these
E to F in 1855 conveyances?
F to G in 1860
G to Plaintiff in 1861
 Then To

W cuts down tree worth $100

A sues W for $100
 At the core of adverse possession is a
statute of limitation
 Statutes of Limitation bar suits after
some period of time after the cause of
action accrues
 Stale claims
 Memory of witnesses
 Plaintiff lacks seriousness
 Judicial administration
 In context of actions to recover possession of
real property
 Cause of action accrues at the time the
wrongdoer enters and takes possession of
the property
 Cause of action for possession differs from
cause of action for trespass
◦ In trespass, there is a wrongful entry, not wrongful
possession
 Actual
 Open and notorious
 Continuous
 Exclusive
 Hostile and under claim of right
◦ (claim of right not the same as color of title)
 Penalize true owner for sitting on rights too
long
 Reward possessor for productivity
 What are the facts of this case?
 Waterville acquires title in 1935 from estate
of true owner
 In 1947, plaintiff purchased the adjoining
land
 Between 1947 and 1986 plaintiff wrongfully used
defendant’s land to
◦ graze cattle, park vehicles, logging operations,
store wood
◦ plaintiff maintained fence, tapped trees, planted
trees, cut trees
◦ posted “no trespassing signs”
 In 1986 Waterville (the record title owner) conveys
to defendant
 Plaintiff sues for declaratory judgment that it owns
disputed land
 Use of land as a reasonable owner would
use the land--not necessarily its highest
and best use--“Possession gauged by
actual state of the land”
 “Simply because a parcel may be
susceptible to uses other than those to
which the claimant chose to put it does not
necessarily lead to the conclusion that the
claimant failed to act toward the parcel as
an average owner would have” (Page 167)
 Occupant needn’t be present at all times
 “The kind and frequency of the acts of
occupancy, necessary to constitute
continuing possession, are dependent on
the nature and condition of the premises
as well as the uses to which it is
adapted.” (Page 168)
 Seasonal possession
◦ Cabin in Colorado
 Acts are open and notorious “if they are
conducted in a manner which would put
a person of ordinary prudence on notice
of the [adverse] claim
 Not the same as ill-will
 “Adverse possessor intends to claim the
land and treat it as his own
◦ Objective hostility
◦ Subjective hostility
 How, in this case, can the possessor
acquire an adverse possession against
the state?
 A enters O’s land. While A’s act appear
to fall short of being sufficiently open to
put an ordinary person on notice, in fact,
O has actual notice of A’s possession.
A’s possession is otherwise actual,
continuous, exclusive and hostile. If O
sues A after the statutory period has run,
who wins?
Welcome to Marengo Cave

A=Adverse Possessor
O=True Owner
 What is the meaning of tacking in the
context of adverse possession?
 O owns Blackacre
◦ A enters in 1980
◦ A sells “his right, title and interest, if any” to B
in 1984
◦ B goes into possession of Blackacre
◦ O sues B in 1992
◦ Who wins? (If it depends on what does it
depend?)
 What other connections between A and
other successors in possession would
give rise to tacking
◦ Gifts, bequests, mortgages
 Oral/Written/Permissive
◦ Ousters
 Problems (a)-(f) on pages 173-74
 What is the concept of tolling
 Typically, what sorts of disabilities
qualify for tolling
◦ Minority (under the age of 18)
◦ Mental incompetency
◦ Imprisonment
◦ Soldiers and Sailors
 An action to recover the title
to or possession of real
property shall be brought
within twenty one years after
the cause of action accrued, Problems, Page 175
but if a person entitled to
bring the action is, at the time
the cause of action accrues,
within the age of minority or
of unsound mind, the person,
after the expiration of twenty
one years from the time the
cause of action accrues, may
bring the action within ten
years after the disability is
removed.
 Objective vs. Subjective hostility

Watch what I do
Not what I say
 Co-tenants
 Tenant/Landlord
 Life tenant/remainderman
 Heirs and devisees
O A
 Under the Maine rule, if A testifies he thought
he’d built up to the true boundary line, who
would own the blackened strip?
 Under the so-called Connecticut rule, would
A’s state of mind matter?
 Why does the court reject both the Maine and
Connecticut rule?
 What rule does the court substitute for them?
 Interviewing the client
 What are the facts of this case?
 Plaintiff claims title to disputed 60’ strip on
which she had planted bushes, installed a
propane tank, constructed a dirt tank to
divert water, and built a driveway for over a
30 year period
 Which criteria does defendant claim plaintiff
failed to satisfy?
◦ Claim of right
 What does the court hold?
◦ Court adopts the “good faith” test to the effect
that a person who knows he does not have
title cannot acquire a title merely by
possessing the property
 Is the court’s analysis convincing in light of
the policies underlying the doctrine of
adverse possession?
 What would plaintiff have needed to acquire
a title by adverse possession?
◦ Color of title
 A

O A

What are the options?

 A

AP enters to the right of line A-B under Deed describing

all of Blackacre
 O owns lots 1-4

1 2 3 4

AP enters Lot 1 under deed describing Lots 1 and 2

AP enters Lot 1 under deed describing Lots 1 and 3

Suppose O owned Lot 1 and O-1 owned Lot 3

 What are the facts of this case?
 What are the competing possibilities for when
the statute of limitations should run?
◦ Discovery
◦ Cessation of diligent search
◦ Demand and refusal