Also known as: hostile use · adverse use · adverse possession element
Written by attorneys — see sources below.
Use of land belonging to another without permission and without regard to the owner's rights.
Holly Hayes drove maintenance trucks across Henry Harrison's gravel path several times each week for eight years to reach a backbone connection. She never sought or received permission and treated the path as available by right. The pattern continued without any break in her attitude of claim despite changes in ownership of the servient parcel.
Helena Hoffman fenced and paved a strip along the edge of Hannah Hale's farm and used it openly for equipment storage. When Hannah attempted no legal action to stop the activity, Helena continued the use for the full prescriptive period. The absence of any interruption by the owner allowed the adverse character to remain intact.
Hector Hernandez paved a driveway across Highland Steel's lot and used it daily for deliveries without any grant. The company never objected or pursued proceedings during the prescription period. The consistent adverse use satisfied the requirement that the activity be continuous and uninterrupted.
Henry Hoffman walked a narrow path across Heritage Trust's pasture only during spring and fall training seasons for more than twenty years. The trust took no steps to halt the activity. The extent of the denial of the owner's rights during those seasons alone determined the durational reach of any prescriptive right.
Hannah Hale crossed Horizon Realty's vacant parcel each week to reach a public road without asking permission. After the prescriptive period elapsed the company attempted to recover for trespass. The prior adverse use shielded Hannah from liability for the acts committed during that period.
Holly Hayes began using a strip of land belonging to Henry Hoffman without permission. After several years she sold her parcel to Helena Hoffman with an assignment of all rights in the disputed strip. Helena continued the identical use. The successive periods combined because privity existed between the claimants.
Land surveying errors led to a mismatch between deed descriptions and actual occupations on the shore of Hood Canal in Mason County. As long ago as 1932, McCall resided in the house now occupied by the Kuntos under a deed describing a 50-foot-wide parcel that was adjacent to the lot where the house stood. Several property owners to the west of defendants were similarly situated. Since 1946, several conveyances occurred using the same legal description accompanied by transfer of possession to succeeding occupants. The Kuntos' immediate predecessors, the Millers, had a survey performed to build a dock which indicated conformity between deed and occupation, leading to placement of boundary stakes and construction of improvements. The Kuntos took possession of the disputed property under a deed from the Millers in 1959. In 1960, the Howards, who held land east of the Kuntos, undertook a survey to convey an undivided one-half interest to the Yearlys. The survey revealed that the Howards were record owners of land occupied by the Moyers and the Moyers held record title to land occupied by the Kuntos. In April 1960, Howard obtained a conveyance from Moyer of the land upon which the Kunto house stood in exchange for conveying the land upon which the Moyer house stood. Until that conveyance, neither Moyer nor predecessors asserted any right to the property possessed by Kunto and predecessors. Plaintiffs instituted this action to quiet title on August 19, 1960, when defendants had been in occupancy of the disputed property less than a year. The trial court denied the Kuntos' claim of adverse possession, finding a lack of continuity of possession or estate to permit tacking and that defendants' possession was not continuous because it involved only summer occupancy. Defendants appealed from the decree quieting title in the plaintiffs.
View caseThe claimant must use the land without permission and without regard to the owner's rights. Permission from the servient owner prevents the use from ripening into a prescriptive easement no matter how long it continues.
No. Actual knowledge by the owner does not negate hostility when the use occurs without permission and under a claim of right. The element turns on the claimant's attitude rather than the owner's awareness.
Supporting sources
Yes. Entry under a defective deed constitutes a claim of right rather than permission. The use therefore satisfies the hostile and adverse requirement even though no valid grant exists.
Permission at any point breaks the chain of adverse use and prevents tacking. Only periods of use without permission and under a consistent claim of right may be combined when privity exists between successive users.
Supporting sources
…appellants contend that their constitutionally established rights under the Fourteenth Amendment to exclude appellees from adverse use of appellants' private property cannot be denied by invocation of a state constitutional provision or by judicial reconstruction of a State's laws of private property. We postponed…