Adverse possession

“ It is the character of the possession, and not the validity of the title, which bars the entry of the owner. It is enough that it is a colourable and not a naked possession, which inures to the benefit of the true owner. The question is as to the character of the possession; and twenty years adverse possession gives the positive right of possession in the land in the action of ejectment. ”

“ The possession must be adverse, and though it is not easy to determine, in all cases, what is adverse possession, it may be affirmed that it must be a possession held by a person claiming the land in his own right, Bell v. ”

“ Nor is it necessary that the defendant shall have a paper title under which he claims possession. It is sufficient that he asserts ownership of the land, and that this assertion is accompanied by an uninterrupted possession. It is this which constitutes adverse possession, claiming himself to be the owner of the land. This is a claim adverse to everybody else, and the possession is adverse when it is held under this claim of ownership, whether that ownership depends upon a written instrument, inheritance, a deed, or even an instrument which may not convey all the lands in controversy. ”

“ And the statute is not only a bar to the assertion of a right of entry upon one in adverse possession after the expiration of the period fixed, but it gives a title to the disseizor. The law casts title upon him, and assures to him the privilege of asserting it, either aggressively or defensively. For the acquisition of this right the defendants have done all that the law contemplates. They entered under a claim of exclusive right, that is, adversarily, and they held that adversary possession continuously until this suit was brought. ”

“ The delectable portions of the globe's surface are not so many that one may inhabit any of them on sufferance. Adverse possession, as the jurists say, provides the only charter that the rest of the world respects. ”

“ Continuous adverse possession of the land, say the court in their third conclusion, having been held by the defendants and their grantors for a period of more than five years subsequent to the time when the statute began to run and before the action was commenced, the action is barred, as there was no disability to sue when the cause of action first accrued. ”

“ The holding of property under a claim of ownership for many years operates to confer a title by adverse possession, which the courts, in the interest of the peace of the community and of society generally, will not permit to be disturbed. ”

“ The deed from Sheriff Walker to O'Fallon and Lindell is within twenty years of the bringing of the suit. By claiming under that deed, the defendant is estopped to deny that the title was then in the heirs of Clamorgan. 14 Johns. (N. Y.) , 225, and note.
The court had previously ruled these deeds to be good. If they were void, no adverse possession could arise. Yet the whole question of adverse possession was left to the jury.
Adverse possession is a legal idea, admits of a legal definition, of legal distinctions, and is therefore correctly laid down to be a question of law. ”

“ All the three superior courts have recently adopted post-terminal fittings, to enable them to despatch their arrears; an act of Parliament having been passed (stat. 1 and 2 Vict. c. 32) for that purpose.
[5] Note 5. Page 42.
If the reader will refer to vol. i. p. 490, he may see how the disabilities here alluded to arose, and affected the case. The doctrine of "adverse possession" is founded on the anxiety of our law to secure quietude of title. It gives every reasonable facility for the assertion of just rights against wrongful possessors of property ”

“ That the intrusion, even of a mere stranger, on lands descended to an infant, constitutes the intruder, ipso facto, a fiduciary possessor, quasi guardian, subject both at law and in equity to all the duties and liabilities of such fiduciary possessor, and utterly incapable of converting his fiduciary possession into a disseisin or adverse possession. ”

“ If a party holds in a character incompatible with the idea of a freehold in another, his holding is adverse. In order to ascertain the character of the holding, courts will look at the parties' conduct while in possession. ”

“ But the proposition cannot be admitted, as it is well-settled law that the possession, in order that it may bar the recovery, must be continuous and uninterrupted as well as open, notorious, actual, exclusive, and adverse. ”

“ Other instances will readily suggest thmselves in which there is some temporary interference with a man's absolute control of his own property; as, when a party is compelled to produce his books and papers for examination by the adverse party, or when, through a receiver, possession of property is taken pending a dispute as to the title or liens upon it. ”

“ No action for use and occupation will lie, when possession has been adverse and tortious, for such excludes the idea of a contract, which, in all cases of this action, must be express or implied.' Authorities upon this point might doubtless be multiplied. ”

“ The act alone does not make the doer of it guilty, unless it is done with a guilty mind. Material without formal wrongdoing is not a ground of liability. The presence either of wrongful intent or of culpable negligence is a necessary condition of responsibility. See §§ 127, 132, 145.
2. Adversus extraneos vitiosa possessio prodesse solet. D. 41. 2. 53.
Prior possession is a good title of ownership against all who cannot show a better. In the civil law, however, from which this maxim is derived, it has a more special application, and relates to the conditions of possessory remedies. ”

“ It sounds harsh and unjust, but it contains the very essence of righteous retribution. The paradox is meant to spur attention, curiosity, and inquiry. The key to it lies here—to use is to have. There is a possession which is no possession. That I have rights of property in a thing, as contradistinguished to your rights, does not make it in any deep and real sense mine. ”

“ For the law will never construe a possession tortious unless from necessity. On the other hand, it will consider every possession lawful, the commencement and continuance of which, is not proved to be wrongful. And this upon the plain principle, that every man shall be presumed to act in obedience to his duty, until the contrary appears. ”

“ The right of action against a stranger for an injury to goods mortgaged, generally, though not always, depends upon the right of possession. When the right of possession is in the mortgagor, he is usually the proper party to sue. ”

“ But if he, who has the actual right of possession, puts in his claim and brings his action within a reasonable time, and can prove by what unlawful means the ancestor became seised, he will then by sentence of law recover that possession, to which he hath such actual right. ”

“ We have already seen what must be restored in the case of one who is in possession of another's property, or in case of unjust damnification to another. In general, the damage inflicted is the measure of the restitution to be made, for justice requires that the owner should have back his own. ”

“ Even in respect of property already owned, the wrongful possession of it is a good title for the wrongdoer, as against all the world except the true owner. Possession is of such efficacy, also, that a possessor may in many cases confer a good title on another, even though he has none himself ”

“ The dilemma that has thus been created for defendants in cases like this has been pointedly put by Judge Learned Hand:
'Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at one to secure the remedies of a possessor, and avoid the perils of the part ”

“ The law shows no favour to one rather than to the other.
3. A third reason for possessory remedies, closely connected with the second, is the difficulty of the proof of ownership. It is easy to prove that one has been in possession of a thing, but difficult (in the absence of any system of registration of title) to prove that one is the owner of it. Therefore it was considered unjust that a man should be allowed by violence to transfer the heavy burden of proof from his own shoulders to those of his opponent. Every man should bear his own burden. ”

“ Trover is commonly understood to go, like larceny, on the plaintiff's being deprived of his property, although in practice every possessor has the action, and, generally speaking, the shortest wrongful withholding of possession is a conversion.
Be the exceptions more or less numerous, the general purpose of the law of torts is to secure a man indemnity against certain forms of harm to person, reputation, or estate, at the hands of his neighbors, not because they are wrong, but because they are harms. ”

“ The elementary rule is that one must recover on the strength of his own and not on the weakness of the title of his adversary, but this principle is subject to the qualification that possession alone is adequate, as against a mere intruder or trespasser without even color of title, and especially so against one who has taken possession by force and violence. ”

“ With a humanity, however, which many suppose to be the growth of our century, the plaintiff should exhaust first the property upon the possession of which the subsistence of the defendant's family did not immediately depend, and even some articles of primary necessity were altogether exempt from seizure. ”

“ We think not. It is not a case for the application of the principle that mere possession is sufficient in order to maintain an action against a wrongdoer. There is no possession in this case. The plaintiffs, in the course of their evidence, show that they have no title to the wood, a d at the same time they show that they were not in possession of it. ”

“ The thief has a possession no less real than that of a true owner. The possessor of a thing is not he who has, or believes that he has, a right to it, but he who intends to act as if he had such a right. To possession in good faith the law may and does allow special benefits which are cut off by fraud, but to possession as such—the fulfilment of the self-assertive will of the individual—good faith is irrelevant. ”

“ Out of these twofold rights, of the right of revenge and the right of property, arose that strange medley of forbearance and blood-thirstiness which stamps the age. Revenge was a duty and a right, but property was no less a right ”

“ Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who retakes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law. ”

“ No rule is better settled than that, when a court has appointed a receiver, his possession is the possession of the court, for the benefit of the parties to the suit and all concerned, and cannot be disturbed without the leave of the court, and that if any person, without leave, intentionally interferes with such possession, he necessarily commits a contempt of court, and is liable to punishment therefor. ”

“ If the possessor of an estate has entered through the forgery of a record or the spoliation of a will, which although believed by every neighbor is beyond judicial proof, all the world pronounces his possession fraudulent, even though he scatters his wealth in charities and gathers many companions around his luxurious table. ”

“ In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. ”

“ But property which is not thus marked, the title to which can only be proved by its actual possession, either upon one's body or in one's house, each person has the right to defend even at the risk of the life of the assailant. The question, What is money worth compared to life? ”

“ But he does this on his own responsibility for not only a faithful, but a correct, judgment in deciding what property to seize. He is liable to suit if by mistake he takes possession of property not liable to seizure under his warrant. ”

“ These circumstances present all the elements which justify resort to the fiction of law by which a person who, in equity and good conscience, was the real owner at the time of an unlawful conversion, is to be regarded, as against the wrongdoer, to have had the legal title and possession, by relation, in him at the time of such conversion, and therefore as having had such a title and possession as, when his disability to assert his rights no longer exists, will entitle him to maintain an action of trover. ”

“ Even if we admit that the value set upon their property is not exaggerated there is no con- testing that they are in honorable and legal possession, and consequently to despoil them would be an attack upon the rights of property. ”

“ He thinks that the protection to possession stands on the same grounds as protection against injuria, that every one is the equal of every other in the state, and that no one shall raise himself over the other. /4/ Ihering, to be sure, a man of genius, took an independent start, and said that possession is ownership on the defensive; and that, in favor of the owner, he who is exercising ownership in fact (i. e. the possessor) is freed from the necessity of proving title against one who is in an unlawful position. ”