From: kaufman@Xenon.Stanford.EDU (Marc T. Kaufman)
Subject: Re: Adverse Possession
Reply-To: kaufman@CS.Stanford.EDU
Organization: CS Department, Stanford University, California, USA
Date: 19 Dec 92 16:39:42 GMT

thf2@ellis.uchicago.edu (Ted Frank) writes:

>In article <kaufman.724739134@Xenon.Stanford.EDU> kaufman@CS.Stanford.EDU writes:

->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.

>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.  

Well, I'm not a lawyer either, but my knowledge of California Easement and
Adverse Possession law is unfortunately up to date because my neighbor(*) is
suing me, claiming adverse possession of some of my land, and easements by
prescription and necessity.  So I went and looked it up.  In any event,
there are some good real-estate law references (Miller and Starr) for
California real estate -- your state may vary.

>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. 

In CA, the requirements for adverse possession (title to my land) require
the same basic elements as an easement by prescription.  That is, 5 years
of open and notorious use, with the knowledge that you are using another's
land, and with the landowners's knowledge that you are using it -- i.e.
running across someone's property in the dead of night doesn't count.  If
you are using the land with permission of the property owner, even if he
didn't know it was his land, you can't accrue time towards prescriptive use.
Adverse possession requires, in addition, that you have paid taxes on the
land in question for 5 years.  The 5 years doesn't have to be the immediately
preceeding 5 years, there can be breaks.

>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.

True.  There has to be necessity.  This is normally invoked to provide access
to a lot that would otherwise be landlocked.

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

You can if you wish, it doesn't bother me.  I'm a computer scientist.

---
(*) My neighbor just happens to be a partner in the largish law firm of
Skadden, Arps, Slate, Meagher and Flom.  He doesn't meet any of the
requirements for possession or easement mentioned above, but rather operates
under the alternative legal principle that whoever is willing to spend the
most can prevail regardless of the facts.

-- 
Marc Kaufman (kaufman@CS.Stanford.EDU)