PROPERTY II

SPRING 2001
Professor Chin

JUSTIFICATIONS FOR ADVERSE POSSESSION
excerpted from Property Law and Policy: A Comparative Institutional Perspective
John P. Dwyer and Peter S. Menell, Foundation Press, New York, NY 1999.

What are the justifications for the doctrine of adverse possession? Does it reward those who make land productive? If so, does the doctrine denigrate owners who prefer to "use" the land by letting it lie dormant?

Is adverse possession a utilitarian doctrine designed to encourage landowners to police their land and to eliminate old claims (for which evidence has faded) and thus reduce litigation? Does adverse possession help to minimize boundary errors by encouraging would-be adverse possessors to survey the land before making substantial investments?

The various philosophical bases for the doctrine of adverse possession are:

• Natural Rights:

  Adverse possession has somewhat of a "labor" basis. It allows a person to acquire property interests through the productive use of land that has fallen into disuse. The doctrine can be viewed as dealing with circumstances where previously owned land reverts to the commons through non-use (and a failure to monitor) and may be claimed by another who applies his or her labor to remove the land from its natural state.

• Utilitarian Theory:

  The utilitarian justification has two branches. First, adverse possession rewards productive use of land over extended non-use. This justification is not strictly utilitarian, for it does not always (or even usually) give title to more productive users --- only when the true owner is making no use (the market will help ensure that less productive uses are transferred to more productive uses, but the market often cannot work when the true owner is unaware of his ownership). It is true, as the question suggests, that the doctrine considers non-use of land to be wasteful, but the tax requirement in most western states reduces the risk that fallow lands will be subject to adverse possession. Second, the doctrine is utilitarian in the sense that it makes land more marketable---reducing stale claims and reducing litigation (and the risk of litigation).

• Personhood:

  Is adverse possession a means to protect personhood interests?

  The passage from Oliver Wendell Holmes, quoted below, eloquently captures the personhood justification:

  A thing which you have enjoyed and used as your own for a long time, whether property or an opinion,
  takes root in your being and cannot be torn away without your resenting the act and trying to defend
  yourself, however you came by it. The law can ask no better justification than the deepest instincts of man.
  It is only by way of reply to the suggestion that you are disappointing the former owner, that you refer to
  his neglect having allowed the gradual dissociation between himself and what he claims, and the gradual association of it with another. If he knows that another is doing acts which on their face show that he is on
  the way toward establishing such an association, I should argue that in justice to that other he was bound
  at his peril to find out whether the other was acting under his permission, to see that he was warned, and,
  if necessary, stopped.

  Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 477 (1897).

  This explanation is limited, however, for it does not explain adverse possession by corporations, nor does it explain tacking.