From: thf2@ellis.uchicago.edu (Ted Frank)
Subject: Re: Adverse Possession
Reply-To: thf2@midway.uchicago.edu
Organization: University of Chicago Computing Organizations
Date: Sat, 19 Dec 1992 05:14:47 GMT

In article <kaufman.724739134@Xenon.Stanford.EDU> kaufman@CS.Stanford.EDU writes:
>THOMASG@epx.cis.umn.edu (Thomas D. Gasser) writes:
>>I have run into an issue with my city government.  I own a home next to the 
>>old city hall in a small Minnesota town.  The City hall was built in 1904, 
>>my home in 1913 and my one car garage in about 1945.  In the early 40's a 
>>water tower was also built on the City hall site behind the hall.  
>
>>A new water tower was built last summer and it was discovered that to 
>>use my driveway or enter my garage I need to drive on city property. This 
>>was news to both myself and the city government who assumed the the property 
>>line was about 10 feet the other way.  
>
>>The city is planning to build a fence on the property line.  This of coarse 
>>would deprive me on use of both my driveway and garage.  Do I have any 
>>recoarse though adverse property laws?  Where is the best place to find out 
>>what the laws are in this case.  The value of the garage is such that it is 
>>not worth bringing an lawyer in on the problem.
>
>Unless you paid taxes on the city land, you probably don't have a case for
>adverse POSSESSION of the property, but you have almost certainly a good
>chance for Prescriptive Easement and/or Easement by reason of Necessity.
>For prescriptive easement you have to openly use the driveway or whatever
>for a term of years (at least 5, here)... BUT - in most jurisdictions the
>use has to be "notorious" and with the knowledge that you were using the
>city's land.  The Necessity easement may be a better go.  How about
>negotiating with the city for a legal grant of easement to access your
>garage?  Or maybe they will help you design and build a new access that
>doesn't encroach.

I'm not a lawyer, this is not legal advice, and property was my worst
subject last year, but it strikes me as a hypothetical proposition that 
driving a car on a driveway for close to fifty years qualifies as 
"open and notorious," unless it's only done furtively in the dead of night.  

The knowledge requirement that Mr. Kaufman suggests is required for
a prescriptive easement doesn't sound correct--the law doesn't traditionally
favor intentional trespass over good faith mistake.  A prescriptive
easement has the same requirements as adverse possession, at any rate. 

I don't recall the payment of taxes as a necessary or sufficient 
qualification for adverse possession, either, but that could just 
explain why I did so poorly on my exam.  

Finally, I don't believe there would be an easement of necessity if
our hypothetical garage owner were merely inconvenienced, rather than
completely unable to reach her property.

I'll refrain from making any snide comments about the state of legal
education at Stanford.  :)

Ted "who should *really* be studying for Con Law, rather than trying
     to remember what Epstein told him" Frank
-- 
ted frank                     | thf2@ellis.uchicago.edu 
standard disclaimers          | void where prohibited
the university of chicago law school, chicago, illinois 60637
Newsgroups: misc.legal