NetNews Usenet Archive 1992 #31/NN_1992_31.iso/spool/misc/legal/21647

Internet Message Format | 1992-12-22 | 4.8 KB

Path: sparky!uunet!meaddata!joem
From: [e-mail] (Joe Mehrle)
Newsgroups: misc.legal
Subject: Re: Adverse Possession
Date: 22 Dec 1992 14:03:46 GMT
Organization: Mead Data Central, Dayton OH
Lines: 85
Distribution: world
Message-ID: <[e-mail]>
References: <[e-mail]> <[e-mail]> <[e-mail]> <[e-mail]> <[e-mail]>
NNTP-Posting-Host: baseball.meaddata.com
Keywords: Sovereign

I *think* this was posted only internally the first time, so I am
reposting it.  If you have seen the first posting disregard this one.

|> In article <[e-mail]>, [e-mail] (Matthew Rosenblatt) writes:
|> |> In article <[e-mail]> [e-mail]
|> |> (Joe Mehrle) writes:
|> |>
|> |> >In article <[e-mail]>, [e-mail] (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.
|> |>
 I was referring generally to property law, yes I am a dangerous law
 student in my 3rd year.  But, I did do a cursory search using
 LEXIS and it retrieved several relevant citations specifically
 from California.  What this person needs to do is go look at
 California Code of Civil Procedure sec. 325.  In that statute's
 case annotations you will find not only the requirements by which
 California will recognize perscriptive easements or adverse possession
 but you will see that there is an exclusivity requirement, which means
 the person wanting to acquire the right must not be sharing his/her
 use with any one else especially the public.  I would "guess" without
 doing any detailed research on California property law that the
 exclusivity requirement (which applies generally in all states) would
 nearly preclude any prescriptive rights because "most" publically held
 property is "shared" and not "exclusively" used.

|>
|> |> >|> 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?
 Again, check out the annotations the only relevant thing I found is
 that if the property held by the state is used exclusively for public
 use and not in a proprietary (private) capacity then it may be exempt
 from adverse possession, or a prescriptive easement but again you
 could probably always win this argument as a state entity anyway
 because of the "exclusivity" requirement.

|> |>                     -- 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-