The Meaning, Origin, and Acquisition of Property

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The Meaning, Origin, and Acquisition of Property

The first person to ake posseion of a thing owns itrule of capturewhy? Reward labor and protect investment in resources.

Labor and Investment

Dred Scott

13th Amend:

Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the US, or any place subject to its jurisdiction.”

Nobody else can own you or your labor

You control your labor and can trade it

You own your own body

Moore v. Regents of Univ. of CA

Unauthorized use of P’s bodily tissue for research do not satisfy a cause of action for conversion.

Doctrinal –applying black letter law to facts

Policy-Why this application advances society

Critical analysis- why we should really want a difference

Mechanical- dealing with rules of procedure


Wild Animals

Pierson v. Post

Law requires captures, rather than pursuit. Why? Reward capture fosters competition and is an easier rule to administer.

If wild animals are captured, they usually belong to captor but capture is required. Merely chasing is not enough.


Foster competition (promote more effective means of capture)

Ease of administration

But note…this was in 19th cent when wild animals were abundant…today the rule of capture leads to overcapture in many instances and overinvestment in capture technology (save the whales)…some are now endangered.

Rule of Capture

A person who first captures otherwise unwonted resources is entitled to the resources.

Popov v. Hayashi

Case of contested home-run baseball

Rule: Where an actor undertakes significant, but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property.

Oil & Gas

Elliff v. Texon Drilling

Applying the rule of capture to Oil and gas permits a landowner to extract (capture) all the oil and gas from a well bottomed under her land even if it drains from a neighbor’s land. However, the “capture” must be non-negligent.

Negligent error in oil mining resulted in the waste of oil from a neghbor’s oil well.

Rule of Capture: Owner of a tract of land acquires title to the oil/gas which may have migrated from adjoining lands. He may appropriate the oil or gas that have flowed from adjacent lands without consent of the owner of those lands, and without incurring liability to him for drainage.

Rule of Capture does not apply to negligent waste and destruction.

Mineral Rights:?????

Ferae Nature:

Oil and gas are held to be minerals ferae naturae because they are not fixed to a particular piece of land. Like animals ferae naturae, oil and gas are considered the property of the owner of the superadjacent land as long as they were in his possession.

Extraction must be reasonable (reasonable standard)

Groundwater & Streams

It is more difficult to apply rule of capture to water, because water is unique in the sense that it has “in stream” uses.

Five ways for dealing with appropriation of groundwater:

Free use or Absolute Ownership:

Each surface owner is free to withdraw as much water as he likes from beneath the surface of his property without liability. An exception is made in case of wasteful use.

Reasonable Use Test

Each owner must accommodate the interests of neighboring owners

Correlative Rights Test

Allows each owner to withdraw a specified portion of the groundwater

Prior Appropriation Test

Grants rights to the owner that first invented the withdrawing of water

Permit System

Administered by local agencies

2 ways to deal with streams

Reasonable Use Test

Asks the decision maker to consider and balance such factors as the relative social value of each owner’s use, the extent of the harm to the D, and the cost of preventing the harm relative to the benefit.

Prior Appropriate Doctrine

First in time, first in right

This doctrine developed in order to protect investment

Some combination of the two

Tragedy of the Commons


Gift, Find, Transfer


A transfer of property from one person to another without payment

Inter vivos Gift: transfer from one living person to another

Testamentary transfers: transfers effectuated at death througha a valid will or inheritance.

Requirements for gift

(1) Intent to transfer

(2) delivery of the property

(3) acceptance by donnee

Revocation of Gift

Traditionally, delivery of gift with intent to transfer title would be hled to be irrevocable

Wedding rings?


First person to take possession of lost/unclaimed property

The finder’s claim of ownership is good against everyone in the world except true owner

Charrier v. Bell

Amatueur archaeologists claims possession of burial articacts disvoered on someone else’s property.

Court holds that the Tunica Biloxi Indians were the descendents of the inhabitants of Trudeau and subsequently the owners of the artifacts.

Buried property is not considered abandoned proerpty, it is buried with intention of preserving possession of it. If property is not abandoned, ti is assume dto be inherited by the modern descendants. They have better claim than anybody else, they have relative title.

Finder fails because there is no find to be made; no abandoned property.

Relativity of Title

Title is a relative concept.

Res Derelictae-things voluntarily abandoned by their woner with the intention to have them go to the first taking possession.

Unjust enrichment-actio de in rem verso (5 requirements)

Must be enrichment

Must be an impoverishment

Must been connection between enrichment and

Tapscott v. Lessee of Cobbs

Anderson dies owing the property in 1800

Executors contract to sell it, first to Sarah Lewis, then to Rives

There is then some cloud on the title

Lewis takes possession sometime before 1835 and then dies

Tapscott possesses the property in 1842

Lewis’s heir is Cobbs, she sues for ejectment in 1854 and wins

It’s a natural principle of justice, that he who is in possession has the right to maintain it, and if wrongfully expelled, to regain it by entry on the wrong-doer.

The law protects a peaceable possession against all except himwho has the actual right to the possession, and no other can rightfully disturb/intrude upon it.

Inheritance: descendant stands in shoes of the original owner

Resale Personal Property

A theirf cannot pass tile to any subsequent owners

However, if an owner entrusts peroty with a merchant and that merchant resells the property to a bona fide purchaser, the bona fide purchaser will usually prevail over original owner.

Why? We are trying to determine “least cost avoider.”

We want to make commerce easier and reduce the impediments to a socially valuable actsuch as commerce.

If entrusted with a person who is not a merchant or who would not be expected to resell the property, the original owner will usually prevail over the bona fide purchaser.

Carlsen v. Rivera

Car rental agency who leases car to a merchant – Florida court holds that a bona fide purchaser will prevail over the true owner when the true owner has entrusted the property to a merchant who regularly deals in such goods.


Trespass and the Right to Exclude


An unprivileged intentional intrusion on peropty possessed by another.

The intent requirement is met if the D engaged in voluntary act.

Trespass is a strict liability, intentional tort.

Why is trespass considered under strict liability?

Because we emphasize the right to exclude.

A trespass is privileged and thus nto wrongful if:

The entry is doen with consent of owner

The entry is justified by necessity ro prevent a more serious harm to persons or property, or

The entry is otherwise encouraged by public policy

Remedies: damages (compensatory, nominal, and punitive), injunction, declaratory relief

Desnick v. ABC


ABC sends reporters into a doctor’s office to report on the conditions and take footage.  The doctor’s office consents but only on the grounds that the report is friendly.  Another group of reporters goes in under no preconditions but simply as potential patients.  The resulting news report is very detrimental to the doctor’s office.


Entering a doctor’s office that is open to the public with the secret motive of evaluating the services for a public report is not considered trespass.


There was no invasion in the present case of any of the specific interests that the tort of trespass seeks to protect: it was not an interference with the ownership or possession of land

The case is similar to the secret presence of a food critic in a restaurant. 

Trespass does not protect a person’s right to avoid being exposed for malpractice.  If the property is opened to the public, trespass will not protect from bad press.


Should fraudulently obtained consent be a defense to trespass?  How do we differentiate when it should and shouldn’t be? 

Suggested Scenarios

1. Discrimination testers who pose as potential home buyers?

The home owner is opening the house to the public and is benefited by people coming into the house.

2. Purported meter reader who just wants to look inside?

The home owner is not opening the house to the public and is required by rule to let the meter reader in.


Perhaps we should look to the social usefulness of those who obtain consent fraudulently.  Most trespass does not have positive social externalities, but if there are such externalities we might decide differently. 

State v. Shack

Case of social workers who enter onto P’s farm to give aid to migrant workers and who insists on seeing the pworkers in privacy in their own living quarters

Holding: The ownership of real property does not include right to bar access to governmental services available to migrant workers and hence there is no trespass in this case.


Competing policy interests: the right of a person to exclude others from his own property v. the right of owkers to aid availbe from feeral, state, or local services, or from recognized charitable groups.

A man’s right in his real property is not absolute. It was a maxim of common law that one should so use his property as not to injure the rights of others.

This is example of new law created by policy reasoning

“Property rights serve human values. They are recognized to that end, and are limited by it. Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises.

Food Lion, Inc. v. Capital Cities/ABC, Inc. (pg. 114)

ABC sent two reporters with false resumes to obtain employment at P Corp. and then videotape improper business practice. 

Held that the initial entry had been consensual despite having been obtained by fraud so no trespass had occurred upon the initial entry.  However, the videotaping of meat packing was not within the scope of the initial invitation and so constituted a trespass.

Main Point

The act must be within the scope of the invitation.

Had Food Lion been decided under the Desnick rule, there is a chance that the outcome might have been different; the two cases aren’t really consistent.

Questions To Ask in Difficult Cases

What interest is P invoking trespass to protects?

The more interest there is in privacy, the less fraudulently obtained consent will be a defense.

What interest does D argue should cause that to give way?

Positive externalities?

What are the different interests in property and access that litigants want the legal system to protect? what are the conflicting interests in exclusion and access that litigants want the legal system to protect?


The taking of an action imposes costs on another person who is not responsible for your act

Ex) pollution-a polluting factory externalizes the cost of its activites

Access when open to public

Uston v. Resorts


Case of the unlawful and legitimate blackjack player who uses a non-prohibited mathematical method to increase his chances of winning and is subsequently removed from a casino.  Court rules for the card player.


The competing interests are the right of an amusement place owner to exclude unwanted patrons and the patron’s competing right of reasonable access. 


Property owners have no legitimate interest in unreasonably excluding particular members of the public when they open the premises for public use.


Reliance on State v. Schmid – See Common Law Right of Reasonable Access

Common Law Right of Reasonable Access

“When property owners open their premises to the general public in the pursuit of their own property interests, they have no right to exclude people unreasonably.  On the contrary, they have a duty not to act in an arbitrary or discriminatory manner toward persons who come on their premises.  That duty applies not only to common carriers and innkeepers…but to all property owners who open their premises to the public.  Property owners have no legitimate interest in unreasonably excluding particular members of the public when they open their premises for public use.”


1. When should the right to reasonable access trump the right to exclude on private property open to the public? and when should it not?

Most states (like Nevada) enforce absolute right to exclude except for inns and common carriers

2. What is the difference between a right to reasonable access at inns and country clubs versus retail stores?


The Right to exclude is very strong,

But, the more you give way to public access the more you forfeit that right.

Public Accommodation Statutes and Public Commons

Public Accommodation Statutes

Civil Rights Act of 1964, Title II:  Public accomm. in interstate commerce.  Can’t exclude patrons on basis of race, color, religion, or nat’l origin if a CC, restaurant, gas station, theater/stadium; can if pvt club.  Can on basis of sex.

Civil Rights Act of 1866, § 1981-82:  Equal rights under law re: race.  All in US may K, sue, be punished, assert property rights—including rt to purchase property—just like white folks.  § 1981 explicitly applies to private action too.

NJ Law Against Discrimination:  Can’t on basis of race, creed, color, nat’l origin, ancestry, age, sex, orientation, marital status, family status, liability for service in Armed Forces, or nationality—or that of one’s friends, family, business partners, or customers.  Broadly defines public accommodations.

Basic Rules for Interpreting Statute

(1) Language

(2) Legislative History

Prior versions of a bill

Committee reports

Debate on the floor

(3) Intent of the Legislature

(4)  Canons of Statutory Interpretation

Public Trust Doctrine

The public trust doctrine acknowledges that the ownership, dominion and sovereignty over land flowed by tidal waters which extend to the mean high water mark, is vested in the State in trust for the people.

By natural law, these things are common property of all; air, running water, the sea, and with it the shores of the sea (Institutes of Justinian)

Most state constitutions have constitutionalized the public trust doctrine. 

NJ v. OR?

CA v. MA?

TX v. NV?

The title to lands under navigable waters, within the boundaries of the state… is held by the state, by virtue of its sovereignty, in trust for all the people.— FL State Constitution, art. I, § 11

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.— PA State Constitution, art. I, § 27

“To the end that the people have clean air, pure water, and the use and enjoyment for recreation of adequate public lands, waters and other natural resources, it shall be the policy of the Commonwealth to conserve, develop, and utilize its natural resources, its public lands, and its historic and cultural sites and buildings. 

Further, it shall be the Commonwealth’s policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth.”–Virginia State Constitution, Article XI, § 1

Illinois Central Railroad v. Illinois

Illinois gave the bed of Lake Michigan to Illinois Central Railroad and when it tried to rescind it, the Railroad demanded compensation. 

However, because the state didn’t have title in the first place, the conveyance of property never actually took place. 

Matthews v. Bay Head Improvement Association (pg. 164)


Whether the public has a right to gain access through and to use the dry sand area not owned by a municipality but by a quasi-public body. 


The Oceanfront property in Bay Head is all either owned privately or operated by the Bay Head Improvement Association (a non-profit, municipality-run organization concerned with policing and cleaning the beaches)

The Association is limited to Bay Head residents and charges them for membership. 


The public has a right to gain access through and to use the dray sand area owned by a non-profit association if it appears that there is no other opportunity or available location for the enjoyment of the “public trust”


There is no public beach in the Borough of Bay Head.  If the residents of every municipality bordering the Jersey shore were to adopt the Bay Head policy, the public would be prevented from exercising its right to enjoy the foreshore. 

The Association is frustrating the public’s right under the public trust doctrine. 

Beach Use and Access Required

Without some means of access the public right to use the foreshore would be meaningless. 

Reasonable enjoyment of the foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is also allowed. 

The dry sand area is “quasi-public”


“we perceive the public trust doctrine not to be ‘fixed or static,’ but one to ‘be molded and extended to meet changing conditions and needs of the public it was created to benefit.’”

This a very expansive interpretation of the public trust doctrine

Contrast: The Massachusetts Approach

The public trust doctrine is limited to fishing and navigation.

It rejects the malleability of public trust suggested by the New Jersey court.  Expanding the public trust to include lands such as dry beach is a violation of private property rights.

Contrast: The Oregon Approach

We can expand the public trust doctrine if custom demands and use has been allowed for a long time

Three Common Law Doctrines Used to Grant Access


A gift of real property from a private owner to the public at large


If the public has used property possessed by another for a particular purpose for a long time (measured by the relevant statute of limitations), the public can acquire such rights permanently even if they never has them originally or if they had previously been reduced to private ownership

Easement – the permanent right to do something on another’s land. “A nonposessory right to use land in the possession of another.” Permissive use.


Long-standing, uninterrupted, peaceable, reasonable, uniform use of the beachfront by the public for recreational purposes conferred continuing rights of access.

The Problem of Homelessness

Conflict between the need of homeless individuals to perform essential, life-sustaining acts in public and the responsibility of the government to maintain orderly, aesthetically pleasing public parks and streets. 

Conquest & Government Grant

Property Clause IV sec 3 clause 2 “Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the US.”

Legal Arguments

Johnson v. M’Intosh

Lawsuit to quiet title. Johnson purchased from Indians in 1773-1775. M’Intosh purchased from US in 1818, after Indians ceded land to US. Issue is provenanceyour title is only as good as your predecessor’s. Who is true owner?


Principles of “abstract justice” may seem offended, but “universal recognition” for rule that discovery gave the US exclusive rights to extinguish Indian title of occupancy, either by purchase or conquest

“Conquest gives a title which the courts of the conqueror cannot deny…It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it.”

Discovery confers a right to extinguish by conquest. 

Discovery” confers right to acquisition by conquest.  What justifies such a right

Conquest gives a title which the courts of the conqueror cannot deny… It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it.

Marshall: principles of “abstract justice” may seem offended, but “universal recognition” for rule that discovery gave US exclusive rights to extinguish Indian title of occupancy, by purchase or conqust

JvM upholds U.S. title by conquest while condemning conquest as unjustifiable in modern age, limiting future injustice against Indian lands.  Affirms three things:

  (1) US holds title by conquest to former Indian lands,

  (2) Indians hold occupancy rights to current lands, &

  (3) only legal means of ousting Indians=conquest or purchase by fed

I’s can’t alienate fee title to other than US (but can convey use rights), but non-I’s can’t just move into I-country and take land, even by AP.      

How Much Property in U.S. Originated By…

…individual effort, rewarding labor & first possession?

(John Locke’s twin principles) 

…methods of appropriation that are now hard to justify?

(based on race, assimilating members of “inferior” culture) 

…governmental redistribution to effectuate social policies?

(encouraging economic development, satisfying human needs, promoting a just distribution of social wealth, etc.)

…and should that matter in how we think about Prop. law?

Current Indian Land Claims

Homestead Acts, Squatters and Freed Slaves

Adverse Possession

Doctrine providing that possession will ripen into ownership if held long enough under certain conditions.

When one actually possesses property in a manner that is exclusive, visible (“open and notorious”), continuous, and without the owner’s possession (“adverse or hostile”) for a period defined by state statute, the rules in force transfer title from the title holder (the “true” or “record” owner) to the adverse possessor.

6 elements

  1. Actual possession that is
  2. Adverse/hostile
  3. Open and notorious
  4. Exclusive
  5. Continuous
  6. For the length of statutory period
          • Ordinary use to which land is capable and such as an average owner would make of it
          • AP implies duty upon landowners to be wary of adverse possessors

boundary dispute: Claim of right issues often arise between adjoining landowners where one of the parties, A, has been in open and notorious possession of a strip of land along his boundary, mistakenly believing it to be his. IN fact, it belongs to his neighbor B.

Brown v. Gobble


P sought to have D enjoined from interfering with P’s intended use of a two-foot wide tract of land that formed a boundary between the adjoining properties of the parties.

D’s answered the complaint and filed a counterclaim alleging ownership to the tract of land by adverse possession.


The court reverses the lower judgment and grants adverse possession to D.


  • This case is a textbook example of a presentation of evidence to meet the requirements set forth above in Somon.
  • The majority view and the view adopted by this court is that adverse possession must be proven by clear and convincing evidence (not a preponderance of the evidence).
          • A preponderance standard would create the risk of increasing the number of cases whereby land is erroneously taken from the title owner under spurious adverse possession claims. 
  • Principle of Tacking invoked in this case
          • Presumption of Adversity

If there is no evidence that the actual owner permitted or did not permit the infringement on their property, the law simply presumes that they did not permit it.

Conveyance of an Adverse Possession Claim

  • A squatter who sells or gives a piece of property to another squatter simply transfers or conveys his right to adverse possession.   


Different adverse possession can be tacked together to make up the period of bar – the persons holding such possessions must be connected by privity of title or claim

color of title: refers to a claim founded on a written instrument (deed/will) which, unknown to claimant, is defective and invalid. Grantee without knowledge of the defect takes possession under color of title. Where a person enters with a color of title, no futher claim of title or proof of adversity is required.

An adverse possessor who has a deed that purports to transfer the land in question but is ineffective to transfer title because of a defect in the deed or a defect in the process by which the deed was issued has “color of title” to the property.

In such cases, occupation of any portion of the land described in the defective title is generally deemed to be actual possession of the whole lot described in the void deed. 

A person’s good faith, reasonable belief that he has title.

Color of title assists in claiming adverse possession, but does not grant title. 

Color of title satisfies the “actual possession” requirement

When dealing with “color of title” arguments and disagreements we presume that there is no permission. 

Permission only applies when the is no purported transfer of interest or title.  Adversity is satisfied.

Romero v. Garcia

  • Romero v. Garcia (pg. 185)


P filed suit to quiet against D, who are her former mother and father in law.  The suit to quiet title was based upon adverse possession for more than ten years under color of title and payment of taxes. 


Judgment rendered for P – the deed is not void for want of proper description if, with the deed and with extrinsic evidence on the ground, a surveyor can ascertain the boundaries.


D argued that the property description was too vague, however P’s surveyor was able to determine the boundaries

When the evidence, with all reasonable inferences deducible therefrom, is viewed in the light most favorable in support of the findings, there is substantial evidence to support these findings of fact and others relevant to this issue.


Even a defective deed can provide color of title.

As long as a surveyor can tell the boundaries of the property from the description on the deed and a survey of the property, that is sufficient as a description of the property.

Title by Deed

Usual instrument for transferring interests in land.  Must be delivered to take effect. 

General Requirements

1. Must be in Writing

2. Signed by Grantor

3. Identifies Grantor and Grantee

4. Describes Property

5. Words of Conveyance

Some states impose other requirements by statute

Warranty Deeds

Make promises about whether land encumbered, etc.

Quitclaim Deeds

Convey whatever interest A has to B, no promises. 


Nome 2000 v. Fagerstrom


P, a titleholder, filed suit to eject D’s from the disputed parcel.  D’s counterclaimed that through their use of the parcel they had acquired title by adverse possession.


P is not entitled to the northern portion of land, but is entitled to the southern portion because D’s did not actually possess that portion


Whether a claimant’s physical acts upon the land are sufficiently continuous, notorious and exclusive does not necessarily depend on the existence of significant improvements, substantial activity or absolute exclusivity.

The quality and quantity of the acts required for adverse possession depend on the character of the land in question

The conditions of continuity and exclusivity require only that the land be used…as an average owner of similar property would use it. 

That others were free to pick berries and fish is consistent with the conduct of a hospitable landowner, and undermines neither the continuity nor exclusivity of their possession.


What the adverse possessors believed or intended has nothing to do with the question whether their possession was hostile.  Hostility is determined by application of an objective test which simply asks whether the possessor acted toward the land as if he owned it, without the permission of one with legal authority to give possession. 

Absent color of title, only property actually possessed may be acquired by adverse possession. 

D’s use of the trails and picking up of litter, although perhaps indicative of adverse use, would not provide the reasonably diligent owner with visible evidence of another’s exercise of dominion and control. 

Actual Possession (pg. 192)

Actual occupancy means the ordinary use to which the land is capable and such as an average owner would make of it.  (Smith v. Hayden)

Open and Notorious (pg. 193)

The adverse possessor need not demonstrate that the “true owner” observed or knew a about the adverse possessor’s use of the property; rather, the true owner is “charged with seeing what reasonable inspection would disclose.” (The Law of Property – Stoebuck and Whitman)

Exclusive Use (pg. 194)

Exclusivity generally means that the use is of a type that would be expected of a true owner of the land in question and that the adverse claimant’s possession cannot be shared with the true owner. (Smith v. Tippett)

Continuous (pg. 194)

The requisite possession requires such possession and dominion as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of like nature and condition. (Howard v. Kunto)

Adversity or Hostility (pg. 194-196)

Adversity requires that the use be non-permissive; the mental states of both the true owner and the adverse possessor are significant.

True Owner: can not have permitted the use of the and

Adverse Possessor:

Lack of Permission (majority)

Claim of Right

Intentional Dispossession (clear minority)

Good Faith

If there is no evidence that permission was given, the court will make a presumption of adversity or hostility.

Claims Against the Government

Courts generally hold that adverse possession claims cannot prevail against government property. 

Burden of Proof

In proving an adverse possession, the adverse possessor bears the burden of proof by “clear and convincing evidence”, NOT “a preponderance.”

Prescriptive Easements: For prescription, the usual elements…

open and notorious

exclusive? NO



For statutory period

Prescriptive Easements

An easement is similar to a title or fee.  Once granted by court, the use or ownership is recognized by law.  The right to the use or ownership is transferable. 

Presumption of Adversity

Similarly to adverse possession, adversity is presumed unless the true owner can show that there was permission given.


1. A pattern of use that is;

2. Open and Notorious

3. Exclusive (sort of)

4. Continuous, and

5. Adverse (or Hostile)

6. For the Statutory Period

Minority Rule: Acquiescence of the owner

The elements of exclusivity and continuity are not as stringent for an easement as it is for adverse possession – See Community Feed Store

Community Feed Store


Community Feed Store (P) claimed a prescriptive easement over a portion of a gravel area used by its vehicles but owned by Northeastern Culvert Corp. (D). 

This is an appeal from rejection of the claim of prescriptive easement and judgment for defense of its counterclaim for ejectment.  Reversed.


A general outline of consistent use is sufficient to establish a prescriptive easement


When a prescriptive easement is claimed, the extent of the user must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period. 

The court rejects D’s claim that the use had been permissive and instead presumes that open and notorious use is adverse to ownership

Prescriptive Easements (pg 192-193, 211-215)

Adverse possession claims result in a transfer of title to the adverse possessor while prescriptive easement claims result in the right to continue the kind and amount of use that persisted during the statutory period.

The elements for prescriptive easements are essentially the same s the elements for adverse possession, except that the “actual possession” requirement is replaced by an “actual use” requirement, and exclusivity of use is not required. 

Negative Easements

Rights to limit or control the use of neighboring property

Problems with negative easements

1. in the case of a negative easement, the owner claiming prescriptive rights has in no way violated her neighbor’s property rights.

2. lawful use of one’s property does not place the true owner on notive that she must bring a lawsuit to protect herself from losing her property rights

3. Allowing negative easements to be acquired by prescription is thought to interfere too much with the free development of land. 

Affirmative Easements

A right to do something specific on the property of another. 

Claim of Right

Those courts that require proof of a “claim of right” generally mean that the use is not permissive but is engaged in by the prescriptive easement claimant regardless of the wishes of the owner of the land. 

It must be shown that the adverse user had an intention of trespassing and did not think that their use was permitted.

Acquisition by the Public

Many older cases and some modern cases hold that the public could not acquire an easement by prescription.

This rule is based partly on the difficulty of proving continuity of use, partly on the difficulty of excluding the public from certain areas, and partly on the presumption that public use of private property is permissive rather than adverse.

Important Point

There are significant differences between adverse possession and prescriptive easement

There is an argument to be made that the presumption of adversity should be removed in the case of prescriptive easement because it is more common for a true owner to permit another’s use of his land and to acquiesce, than it is for an owner to permit another person to actually possess his property.