From: matt@smoke.brl.mil (Matthew Rosenblatt)
Newsgroups: misc.legal
Subject: Re: Adverse Possession
Summary: Common Law versus Eleventh Amendment
Keywords: Sovereign
Date: 21 Dec 92 21:50:34 GMT
Organization: U.S. Army Ballistic Research Lab, APG MD.

In article <1h524fINNcbl@meaddata.meaddata.com> joem@meaddata.com 
(Joe Mehrle) writes:

>In article <19486@smoke.brl.mil>, matt@smoke.brl.mil (Matthew Rosenblatt) 
>writes:

>|> I've got a few questions for all those lawyers and law students
>|> out there to look up:

>|> 1)  Does adverse possession run against the sovereign?  [Matt Rosenblatt]

>Yes, most definitely.  Property law is a different beast then suing a
>state for civil damages, so the 11th amendment sovereign immunity does
>not apply.  [Joe Mehrle]

I wasn't thinking of the XIth Amendment at all.  I recognize that
property law is much older than the XIth Amendment, older than the
Constitution itself, and that unlike in many other areas of the law,
the older a property case is, the more respect it gets.  And anyway,
the XIth Amendment protects a State only against suits under "[T]he
Judicial Power of the United States" [i.e., Federal suits] "in law 
or equity, commenced or prosecuted against one of the United States 
by Citizens of another State, or by Citizens or Subjects of any
Foreign State."  U.S. Const., Amendment XI.  The Federal Constitution
did not need to protect States against suits by their own citizens
in their own State courts, because the doctrine of "sovereign immunity"
in the common law protected States from those suits.

What I had in mind is the ancient principle that one could not acquire
the King's land by adverse possession, nor acquire an easement against
the King by prescription.

>In fact adverse possession is most often used against a
>state, particularly in wild forest areas.  [Joe Mehrle]

The original poster -- the fellow who is wondering whether he
can use adverse possession or easement by prescription against
City Hall -- would probably be interested in seeing case citations
illustrating this statement.

>|> 2)  Can one acquire an easement by prescription against the
>sovereign?   [Matt Rosenblatt]

>Yes, for the same reason above . . .  [Joe Mehrle]

Again, how about some cases where this has been done successfully?

>|> 3)  In California, is a municipality considered to be "sovereign,"
>|>     as the State is?   [Matt Rosenblatt]

>The 11th amendment sovereignity applies only to civil damages and only
>when a private citizen is suing a state or state agency, cities and
>municipalities do not have sovereign immunity.   [Joe Mehrle]

But can't a municipality be considered a "sovereign" for the common-law
purpose of protecting its land from adverse possession and easement by
prescription, even if it has no XIth Amendment immunity against suit
brought by a citizen of another State?  For that matter, can't a 
municipality still be the "sovereign" for property-law purposes even
if its State has, either through statute or through judicial ruling,
abrogated the old "sovereign immunity" against lawsuits?

					-- Matt Rosenblatt
                                        (matt@amsaa.brl.mil)

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