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Can the Government Acquire Property by Adverse Possession?
by Robert Franco | 2017/10/08 |

In Ohio, you can acquire legal title to another's real property if you prove exclusive possession and open, notorious, continuous, and adverse use for a period of 21 years. But, the general rule is that you cannot adversely possess property against the state.  So, when a friend here in Ohio emailed me this very interesting question, my first thought was "sure... I think so, if all of the elements are met, why not?"  But, the Fifth Amendment to the U.S. Constitution provides that private property shall not be taken "without just compensation." Does that rule out the possibility that the government can take title by adverse possession -- without going through the process of a condemnation proceeding and paying just compensation? Hmmm... it really is an interesting question.

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Early cases in Ohio recognized that "no adverse occupation and use of land belonging to the state of Ohio, however long continued, can divest the title of the state in and to such lands." But, early and mid-19th century courts refused to extend such protection to land owned by subdivisions of the state, e.g. townships and municipalities.  By 1900, it was held that adverse possession could not be used to acquire title to public roads.  One court ruled that a "railroad's encroachment on a county road was a nuisance that could not mature into adverse possession."  It also restricted adverse possession against townships and municipalities to situations where large and valuable structures had been erected on public property.  

The general rule prohibiting adverse possession against the government has its roots in public policy.  The government holds its lands for the benefits of the public. And, courts have held that "the statute of limitations does not apply as a bar to the rights of the public."  A governmental entity should not be expected to be as vigilant as a private land owner in monitoring its property for trespassers.  Setting aside property for future development is, in and of itself, a valuable use of resources.  Thus, it would violate public policy if such property could be lost due to the inattention of the government. 

Still, there are exceptions to the rule.  Adverse possession can be used to divest a school board of its title to property, but this has been a narrowly construed exception.  It has not been extended to park districts, for example.  There is also a statute that specifically allows for the adverse possession of a street or alley "that has not been opened to the public."  See R.C. § 2305.05.

So, it's difficult to divest the state of property by adverse possession, but does this necessarily mean that the state cannot acquire private property by adversely possessing it for the statutory period?  There is very little case law on this topic.  But, there are a couple of examples.

In Chesbro v. Board of County Commissioners of Douglas County, 186 P.3d 829 (2008), a Kansas court affirmed a judgment in favor of Douglas County holding that the County had acquired title to the property "by adverse possession through a belief of ownership for the requisite 15 years."  Chesbro purchased approximately 174 acres from Alvin Fishburn in 2004; the land abutted land owned by the County that is a part of Lone Star Lake park.  Douglas County Road 1-E ran somewhat parallel to the property line of Chesbro's property.  

In 1972 Fishbun and the County shared the cost of building a fence along what they intended to be the boundary line between their properties.  There was about 10 feet between the public road and fence, which became the disputed land in this case. 

A title commitment issued for the sale to Chesbro revealed that the 10 foot strip between the fence and road was included in the property conveyed to Chesbro. But when Chesbro applied to the County for a residential entrance permit to access the county road, it was denied.  The County claimed that it owned the 10 foot strip and Chesbro's property didn't abut the road.  

The evidence showed that Fishburn and the County intended the fence to mark the boundary line and that the County had always maintained the property on its side of the fence.  Finding that the County had a good faith belief that it owned the land and its possession was open, exclusive and continuous, the Court held that the County acquired legal title.  

Thus, Chesbro stands for the proposition that a governmental entity can acquire title by adverse possession.  But, the Court didn't address whether a taking had occurred and whether the County was required to pay just compensation.   

A Rhode Island case, Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87 (Cir. 2003), came close to addressing the Fifth Amendment issue in an inverse condemnation case.  The reservoir, also known as Echo Lake, is more than 2 miles long with more than 10 miles of shoreline.  Pascoag's predecessor created the lake in 1860; Pascoag acquired it in 1983.  The state purchased a lot abutting the reservoir in 1964 and constructed a public boat ramp the following year.  Thereafter, members of the public could use the ramp as a point of access to the lake for various recreational activities, including boating and fishing.  

In 1997, Pascoag attempted to limit the public's use of the lake by posting "no trespassing" signs.  In 1998, the state filed suit in state court claiming that it acquired property rights in the reservoir by adverse possession.  Pascoag cross-claimed, alleging that the state's actions constituted a taking without just compensation. But, before the state court could decide the taking issue Pascoag voluntarily dismissed it's inverse condemnation claim. 

In 2001, the Rhode Island Supreme Court held that the state had acquired by adverse possession a small portion of the Lake bottom (occupied by the boat ramp) and had acquired, on the public's behalf, a prescriptive easement to use the boat ramp to access the entire Lake for recreational purposes. "The state had begun to use the Reservoir property in 1965 and, under the Rhode Island ten year adverse possession statute, had acquired title to a portion of the Reservoir plus an easement in 1975."

Shortly after the 2001 Rhode Island Supreme Court decision, Pascoag filed suit in Federal Court claiming that, among other things, the state violated the Takings Clause of the Fifth Amendment.  The Court, however, found that Pascoag's claim was filed too late and was time barred.  Because the state had acquired title in 1975, after 10 years of adverse possession that began in 1965, that was when the taking occured.  Under state law in Rhode Island, the statute of limitations to recover on such a claim is 10 years.  Therefore, Pascaog would have had to have brought its claim by 1985 -- long before the Rhode Island Supreme Court ruled that the state acquired title.

According to the Federal Court, the state's adverse possession was open an notorious and Pascoag should have known that a taking was in progress and brought suit under state law at that time.  "By failing to bring its state claim within in the statute of limitations period, Pascoag forfeited its federal claim," the Court wrote.  "The state provided a remedy, but Pascoag failed to pursue it."

Ultimately the case was dismissed and "the question of whether or not the state must pay when it takes land by adverse possession will have to wait for another day."

It would seem that that a state may acquire title to private property by adverse possession, so long as it can establish all of the required elements: open, continuous, exclusive, adverse, and notorious possession for the statutory period -- 21 years in Ohio.  It also seems clear that a taking occurs, most likely upon the expiration of the staute of limitations.  If an ejectment suit is brought before the statutory period has ran, the private owner would regain possession and the adverse possession would be terminated before it ripens into title.  But, once that is no longer possible, title vests in the state -- and at this point a taking has occured and just compensation is due. 

This is just my opinion... we are still waiting for a court to confirm that a state must pay just comensation for property acquired by adverse possession.  




Categories: Adverse Possession, Inverse Condemnation, Real Estate Law

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Source of Title Blog

Robert A. FrancoThe focus of this blog will be on sharing my thoughts and concerns related to the small title agents and abstractors. The industry has changed dramatically over the past ten years and I believe that we are just seeing the beginning. As the evolution continues, what will become of the many small independent title professionals who have long been the cornerstone of the industry?

Robert A. Franco



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