NetNews Usenet Archive 1992 #31/NN_1992_31.iso/spool/misc/legal/21609

Internet Message Format | 1992-12-21 | 3.7 KB

Path: sparky!uunet!meaddata!joem
From: [e-mail] (Joe Mehrle)
Newsgroups: misc.legal
Subject: Re: Adverse Possession
Date: 21 Dec 1992 18:24:15 GMT
Organization: Mead Data Central, Dayton OH
Lines: 66
Distribution: world
Message-ID: <[e-mail]>
References: <[e-mail]> <[e-mail]> <[e-mail]> <[e-mail]>
NNTP-Posting-Host: baseball.meaddata.com
Keywords: Sovereign

In article <[e-mail]>, [e-mail] (Matthew Rosenblatt) writes:
|> In article <[e-mail]> [e-mail]
|> writes:
|>
|> >[e-mail] (Ted Frank) writes:
|>
|> >>I'm not a lawyer, . . .  [Ted Frank]
|>
|> >Well, I'm not a lawyer either, but my knowledge of California Easement and
|> >Adverse Possession law is unfortunately up to date because my neighbor(*)
|> >is suing me, claiming adverse possession of some of my land, and easements
|> >by prescription and necessity.  So I went and looked it up.  . . .
|> >[Marc Kaufman]
|>
|> 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?
|>
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.  In fact adverse possession is most often used against a
state, particularly in wild forest areas.  But you need several
elements for adverse possession to work.  #1 it has to be adverse,
which means you cannot have permission to be where you are at, if the
state gives you permission your adverse period stops running.  #2 You
have to adversely possess the property for the statutory period,
defined by statutes in the state but it is typically 25 years.  #3 You
have to hold the property out to the world as if it is yours, in other
words you cannot possess the property in secrete, the world has to see
what you are doing.

|> 2)  Can one acquire an easement by prescription against the
sovereign?
Yes, for the same reason above perscriptive easements are very similar
to adverse possession but the period of time required for using the
property is usually less than the adverse period and you usually get
perscriptive easements when someone cuts through anothers yard and
does so in the opening over a period of time that person (the one
cutting through the yard) has a perscriptive easement.  Keep in mind
that each time the owner does something more to keep you out, like
calls you or hangs up a sign the statutory period starts all over
again at 0.  Adverse possession and perscriptive easements are tough
to get and if the owner says you have my permission than your adverse
period is scrapped because possession (or use with perscriptive)
easements must be adverse (against the owners desires or he/she cannot
give express permission).
|>
|> 3)  In California, is a municipality considered to be "sovereign,"
|>     as the State is?
|>
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.

|>                     -- Matt Rosenblatt
|>                                         ([e-mail])
|>
|> - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
|> TRUTH     JUSTICE     FREEDOM     YIDDISHKEIT     IVY     THE AMERICAN WAY

--
Joe Mehrle                       "I don't know why I
Mead Data Central, Dayton, Ohio   did it, I don't know why I liked it,
Internet: [e-mail]       and I don't know why I'll do it again"
UUCP:     !uunet!meaddata!joem           -Bart Simpson-