Synopsis of Rule of Law. A record title may be defeated by adverse possession, which requires that the possession must be actual, visible, notorious, exclusive, hostile to the true owner, and continuous for the full statutory period.
The adverse user must unfurl his flag on the land, and keep it flying, so that the owner may see, if he will, that an enemy has invaded his domains, and planted the standard of conquest.View Full Point of Law
Issue. Whether a 46-year possession of a subterranean cave that extends beneath another person’s land is open, notorious, and exclusive to obtain title to the cave by adverse possession.
Held. No. A record title may be defeated by adverse possession, which requires that the possession must be actual, visible, notorious, exclusive, hostile to the true owner, and continuous for the full statutory period. In this case, that period was 20 years. The issue here was whether the cave was sufficiently open, notorious, and exclusive. The court explained that open possession must be visible so that the owner knows, or should have known, of it. Notorious means that possession must be manifest to the community. The court found that because the cave was underground, possession was neither open nor notorious because there was no way the owner or public could know that the cave’s passages extended into Appellee’s land. Moreover, for possession to be exclusive, it must operate as an ouster to the owner. In this case, the court found that the Appellee still maintained actual possession of the land above ground apart from Appellant’s trespass into the passages of the cave. Because the elements of adverse possession could not be satisfied, the court affirmed the trial court’s judgment for the Appellee.
Discussion. This decision points out that the taking of another’s property without his knowledge is similar to a trespass, and to support that method of taking would be against public policy. This is why adverse possession requires that the owner knew, or should have known, of another’s possession, which arguably gives the owner an opportunity to do something about it prior to running of the statutory period.