Also known as: adverse use · hostile use · adverse possession element · hostile possession
Written by attorneys — see sources below.
Use of land belonging to another that is made without permission and in assertion of a claim of right hostile to the owner's interests.
Audrey Ashton drove maintenance trucks across Anchor Bank's rear gravel path several times each week for eight years without any permission or break in her asserted right. Anchor Bank never interrupted the pattern. The unbroken attitude of claim supports the continuity element of adverse use.
Amelia Amari installed and maintained fiber optic cable along a strip of Alliance Holdings' land for fifteen years. Alliance Holdings never brought suit or physically stopped the activity. The absence of interruption preserves the hostile character of the use.
Albert Allen's nonprofit club walked a dirt path across Ava Adebayo's farm only in spring and fall for twenty-two years. The use remained open and without consent throughout the period. The continuous hostile pattern satisfies the prescription requirement.
Anika Anand's company paved and used a disputed strip of Andrew Avery's property for parking over twelve years. The denial of rights extended only to the paved area actually occupied. The durational extent of any resulting easement is confined to that precise scope.
Aurora Biotech ran weekly delivery vehicles across Azure Solutions' access road for the full prescriptive period. The use was never authorized. Aurora Biotech gains immunity from trespass liability for those acts during the period.
The first owner of a lakeside cabin walked a trail across a neighbor's meadow each summer for ten years. The successor owner continued the identical pattern for another ten years after purchasing the cabin. The combined hostile use meets the statutory period.
Land surveying errors led to a mismatch between deed descriptions and actual occupations on the shore of Hood Canal in Mason County. As long ago as 1932, McCall resided in the house now occupied by the Kuntos under a deed describing a 50-foot-wide parcel that was adjacent to the lot where the house stood. Several property owners to the west of defendants were similarly situated. Since 1946, several conveyances occurred using the same legal description accompanied by transfer of possession to succeeding occupants. The Kuntos' immediate predecessors, the Millers, had a survey performed to build a dock which indicated conformity between deed and occupation, leading to placement of boundary stakes and construction of improvements. The Kuntos took possession of the disputed property under a deed from the Millers in 1959. In 1960, the Howards, who held land east of the Kuntos, undertook a survey to convey an undivided one-half interest to the Yearlys. The survey revealed that the Howards were record owners of land occupied by the Moyers and the Moyers held record title to land occupied by the Kuntos. In April 1960, Howard obtained a conveyance from Moyer of the land upon which the Kunto house stood in exchange for conveying the land upon which the Moyer house stood. Until that conveyance, neither Moyer nor predecessors asserted any right to the property possessed by Kunto and predecessors. Plaintiffs instituted this action to quiet title on August 19, 1960, when defendants had been in occupancy of the disputed property less than a year. The trial court denied the Kuntos' claim of adverse possession, finding a lack of continuity of possession or estate to permit tacking and that defendants' possession was not continuous because it involved only summer occupancy. Defendants appealed from the decree quieting title in the plaintiffs.
View caseUse is adverse and hostile when it occurs without permission and asserts a claim of right against the owner's interests. The absence of any grant or consent combined with open assertion of the right satisfies the element.
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A break in the essential attitude of mind required for adverse use interrupts continuity. The use must remain consistently hostile throughout the period without any shift to permission or subordination.
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The owner interrupts adverse use by bringing suit that determines the use lacks legal justification or by causing cessation of the use without court action. Mere objection without further steps does not suffice.
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The durational extent of any easement is limited to the precise denial of the owner's rights that occurred during the adverse period. Broader or different uses fall outside the acquired right.
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Adverse use throughout the prescriptive period creates immunity from liability for the acts of use committed during that time. The user is protected from trespass claims arising from the qualifying conduct.
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…appellants contend that their constitutionally established rights under the Fourteenth Amendment to exclude appellees from adverse use of appellants' private property cannot be denied by invocation of a state constitutional provision or by judicial reconstruction of a State's laws of private property. We postponed…