ADVERSE POSSESSION - A method, prescribed
by statute, by which someone other than the title
holder gains title to land.
The enjoyment of land, or such estate as lies in
grant, under such circumstances as indicate that such
enjoyment has been commenced and contiuued, under
an assertion or color of right on the part of the
possessor. Actual possession is a pedis possessio
which can be only of ground enclosed, and only such
possession can a wrongdoer have. He can have no constructive
possession.
When the possession or enjoyment has been adverse
for twenty years, of which the jury are to judge from
the circumstances the law raises the presumption of
a grant. A But this presumption arises only when the
use or occupation would otherwise have been unlawful.
There are four general rules by which it may be ascertained
that possession is not adverse; these will be separately
considered.
- 1. When both parties claim under the same title;
as, if a man seised of certain land in fee, have issue
two sons and die seised, and one of the sons enter
by abatement into the land, the statute, of limitations
will not operate against the other son; for when the
abator entered into the land of his father, before
entry made by his brother, the law intends that he
entered claiming as heir to his father, by which title
the other son also claims.
When the possession of the one party is consistent
with the title of the other; as, where, the rents
of a trust state were received by a cestui que trust
for more than twenty years after the creation of the
trust, without any interference, of the trustee, such
ppssession being consistent with and secured to the
cestui qwe trust by the terms of the deed, the receipt
was held not to be adverse to the title of the trustee.
When, in contemplation of law, the claimant has never
been out of possession; as, where Paul devised lands
to John and his heirs, and died, and John died, and
afterwards the heirs of John and a stranger entered,
and took the profits for twenty years; upon ejectment
brought by the devisee of the heir of John against
the stranger, it was held that the perception of the
rents and profits by the stranger was not adverse
to the devisee's title; for when two men are in possession,
the law adjudges it to be the possession of him who
has the right.
When the occupier has acknowledged the claimant's
titles; as, if a lease be granted for a term, and,
after paying the rent for the land during such term,
the tenant hold for twenty years without paying rent,
his possession will not be adverse.
