PROPERTY (Section 1)
Spring Semester 2013
Adverse Possession II (Hostility)
Pages 181-193

You may also wish to review the CALI lessons for Adverse Possession, available on the CALI CD or on the web at www.cali.org.

1. In Norman v. Allison, back in 1974, Norman had shown the Bunselmeyers (the former owners of the land in question) where he intended to build this road and asked for their "OK."  Allison now argues (and the court agrees) that this conversation demonstrates that Norman was requesting "permission" from the Bunselmeyers to build a fence on their land.

a. Is this the correct inference to draw from their conversation? What other inferences are possible? What difference does it make when you are attempting to evaluate whether Norman's claim of possession to the disputed land was "hostile"?

b. Of the three approaches to “hostility” discussed in the notes after Norman, which approach does the court actually apply? Why?

c. In light of the purposes of adverse possession law, which approach to the hostility requirement makes the most sense?

d. Suppose that a prospective client comes into your office and begins telling you that she has a boundary dispute with her neighbor involving a fence, which her neighbor now claims is encroaching on his land. The neighbor has demanded the fence be moved. What do you do? Do you ask the client to tell you the story of how the fence was built first? Or do you first explain what the applicable law is, and then ask the client to tell you the story of how the fence was built? Does it matter?

2.   Should the court have applied the “agreed boundaries” doctrine (note 4, page 190) in Norman?  Why or why not?  What purpose does it serve to have an "agreed boundaries" doctrine at all — in other words, if we already have the law of adverse possession, why do we need a separate doctrine of "agreed boundaries"?

3.   In 1990, Bowman builds a fence that encroaches onto the land of his neighbor Wells by approximately 5 feet.  One year later, in 1991, after obtaining a survey, Wells discovered the encroachment and confronted Bowman, saying "Look, I don't want you to have to move the fence.  I don't mind where it is for now.  But you have to agree that you’re keeping it there with my permission and that if I decide to put my house up for sale, you'll move the fence so that I won't have any problem selling the land because of the fence."  Bowman says "OK."

Four years later, in 1995, Bowman sold his home to Litton.  Bowman did not say anything to Litton about the mislocation of the fence or his conversation with Wells.  Litton assumed that the fence correctly marked the boundary line.  In 2013, Wells enters into a contract to sell her home and demands that Litton relocate the fence to the correct boundary line.   Litton refuses.  Does Litton have a legitimate basis for refusing to relocate the fence?  If so, what basis and why?

4. Assume that during the 9 years after Norman built his fence, the Bunselmeyers had regularly used the disputed area for grazing their cattle, using a gate in the fence. Would this use by the Bunselmeyers prevent Norman from establishing that his possession was sufficiently exclusive? Why or why not?