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- Path: sparky!uunet!gatech!paladin.american.edu!darwin.sura.net!haven.umd.edu!mimsy!afterlife!adm!smoke!matt
- From: matt@smoke.brl.mil (Matthew Rosenblatt)
- Newsgroups: misc.legal
- Subject: Re: Adverse Possession
- Summary: Common Law versus Eleventh Amendment
- Keywords: Sovereign
- Message-ID: <19489@smoke.brl.mil>
- Date: 21 Dec 92 21:50:34 GMT
- References: <kaufman.724783182@Xenon.Stanford.EDU> <19486@smoke.brl.mil> <1h524fINNcbl@meaddata.meaddata.com>
- Organization: U.S. Army Ballistic Research Lab, APG MD.
- Lines: 67
-
- In article <1h524fINNcbl@meaddata.meaddata.com> joem@meaddata.com
- (Joe Mehrle) writes:
-
- >In article <19486@smoke.brl.mil>, matt@smoke.brl.mil (Matthew Rosenblatt)
- >writes:
-
- >|> 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? [Matt Rosenblatt]
-
- >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. [Joe Mehrle]
-
- I wasn't thinking of the XIth Amendment at all. I recognize that
- property law is much older than the XIth Amendment, older than the
- Constitution itself, and that unlike in many other areas of the law,
- the older a property case is, the more respect it gets. And anyway,
- the XIth Amendment protects a State only against suits under "[T]he
- Judicial Power of the United States" [i.e., Federal suits] "in law
- or equity, commenced or prosecuted against one of the United States
- by Citizens of another State, or by Citizens or Subjects of any
- Foreign State." U.S. Const., Amendment XI. The Federal Constitution
- did not need to protect States against suits by their own citizens
- in their own State courts, because the doctrine of "sovereign immunity"
- in the common law protected States from those suits.
-
- What I had in mind is the ancient principle that one could not acquire
- the King's land by adverse possession, nor acquire an easement against
- the King by prescription.
-
- >In fact adverse possession is most often used against a
- >state, particularly in wild forest areas. [Joe Mehrle]
-
- The original poster -- the fellow who is wondering whether he
- can use adverse possession or easement by prescription against
- City Hall -- would probably be interested in seeing case citations
- illustrating this statement.
-
- >|> 2) Can one acquire an easement by prescription against the
- >sovereign? [Matt Rosenblatt]
-
- >Yes, for the same reason above . . . [Joe Mehrle]
-
- Again, how about some cases where this has been done successfully?
-
- >|> 3) In California, is a municipality considered to be "sovereign,"
- >|> as the State is? [Matt Rosenblatt]
-
- >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. [Joe Mehrle]
-
- But can't a municipality be considered a "sovereign" for the common-law
- purpose of protecting its land from adverse possession and easement by
- prescription, even if it has no XIth Amendment immunity against suit
- brought by a citizen of another State? For that matter, can't a
- municipality still be the "sovereign" for property-law purposes even
- if its State has, either through statute or through judicial ruling,
- abrogated the old "sovereign immunity" against lawsuits?
-
- -- Matt Rosenblatt
- (matt@amsaa.brl.mil)
-
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