Adverse Possession

Not a regulatory taking and no compensation due when a town acquires an easement by prescription

The Supreme Judicial Court of the Commonwealth of Massachusetts held that a town can acquire an easement by prescription and that, if it does, no just compensation is due because no regulatory taking has occurred. Rather, the landower failed to object by suing for trespass or to give permission so the statute of limitations for ejecting the intrusion passed and the owner's right to exclude was limited by statute and the doctrine of easement by prescription. The town did not "take" the property; the owner lost property rights by failing to take steps required by law to preserve those rights.... Read more about Not a regulatory taking and no compensation due when a town acquires an easement by prescription

Adverse possession available against city when land was not being used for a public purpose

The Pennsylvania Supreme Court has joined the modern movement to allow adverse possession claims against cities when the city’s land being occupied was not being devoted to a public purpose during the period was it was occupied by the adverse possessor. City of Philadephia v. Galdo, 217 A.3d 811 (Pa. 2019).

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Grant of permission to use driveway 31 years after initial use did not defeat prescriptive easement claim

Owners who traversed a road over neighboring land to get to a public way for more than 30 years established a right to a prescriptive easement despite a grant of permission by the owner of the servient estate that occurred long after the statute of limitations had run....

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Easement owner who exceeds the scope of the easement can obtain new use rights by prescription

Owner of an easement of passage that also uses the land without permission to park a car, use the area as a yard and maintain the lawn exceeds the scope of the easement and if done for the statutory period can obtain an easement by prescription for the longstanding uses. Savoie v. Zaniboni,  27 LCR 165, 2019 Mass. LCR LEXIS 58, 2019 WL 1511101 (Mass. Land Ct. 2019). The court applies the traditional presumption that uses of another's land are nonpermissive unless evidence of permission is present.

Adverse possessor must identify and provide evidence of the boundaries of the land that is being adversely possessed

An owner cannot claim part of the neighbor’s land by adverse possession without clear evidence of where the border is. In Coscina v. DiPetrillo, 186 A.3d 590 (R.I. 2018), the adverse possessor claimed occupation of parts of her neighbor’s land but court documents repeatedly changed the location of the claimed line between the properties. Not only must the adverse possessor establish where the line is that encompasses the property acquired by adverse possession but must show sufficient evidence to... Read more about Adverse possessor must identify and provide evidence of the boundaries of the land that is being adversely possessed

Town acquires prescriptive easement allowing public to use a road and abutting parcel

When a road and abutting triangle of land was used the public and maintained by the town, the town acquired a prescriptive easement for continued use of the road by the public. Athanasiou v. Board of Selectmen of Westhampton,82 N.E. 3d 436 (Mass. App. Ct. 2017). The town's highway superintendent maintained the area, plowed, sanded...

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Nonuse insufficient to show an easement was abandoned and it is not extinguished by prescription when a locked gate did not make it impossible for the easement owner to use the right of way

A locked gate did not extinguish the right to use an express easement when the fence was intended to keep out the public and did not prevent the easement owner from accessing the right of way. Twenty Bartlett, LLC v. Sgarano, 2018 Mass. Super. LEXIS 104 (Mass. Super. Ct. 2018). Only if an action renders use of an easement "practically impossible" can it start the statute of limitations running for a prescriptive easement that will extinguish the...

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Tree may be removed by owner of property where it first grew even if it grew to encroach on neighboring land and the neighboring owner does not want it removed

The Colorado Supreme Court has held that an owner may remove a tree on her own land even if it has grown over the borderline onto neighboring land even if the neighboring owner objects to removal of the tree. Love v. Klosky,2018 CO 20, 413 P.3d 1267 (Colo. 2018). In contrast, a border tree that was planted on the border itself becomes the...

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