If your jurisdiction does not have "adverse possession" or "prescriptive easement" laws, you can probably tear that fence down or do whatever else you want with it. (IANAL and please just talk to your neighbors first!)

None of this is related, either legally or in spirit, with the sentence you cited. The cited statement refers to an unlawful act, over time, attempting to override the law. In most (all in the US?) jurisdictions a law regarding prescriptive easements or adverse possession probably makes your neighbor's actions legal. The entire point of this ruling is that congress never passed a similar law to make this sort of action legal.

My jurisdiction does, of course, which is why I mentioned it.

> None of this has anything, either legally or in spirit, with the sentence you cited

I disagree, strongly.

I acknowledge that the fence line is now legal, in the colloquial sense meaning "in compliance with the law".

Everyone acknowledges that the fence line was once illegal, in the same colloquial sense.

Yeah, you're right, the ruling in the linked article is different, and governs the creation or removal of actual laws. However, it's similar in spirit in that something that was forbidden, if done for long enough, becomes permitted. If you can't see the analogy, I recommend you just shrug and move on.

Excuse me? What on earth does legal mean other than specifically being "in compliance with the law"? There is nothing colloquial about it, that's quite literally the formal definition.

>However, it's similar in spirit in that something that was forbidden, if done for long enough, becomes permitted. If you can't see the analogy, I recommend you just shrug and move on.

This is not true at all. The whole basis for a prescriptive easement rests upon the fact that it wasn't forbidden. If you object to someone's use of your land, then their fence becomes illegal and is indeed forbidden. To acquire an easement, you need to prove that your use was not contentious, ie. specifically demonstrate that your usage did not contravene any prohibition.

> If you can't see the analogy, I recommend you just shrug and move on.

I recommend you take a moment to reflect on how obnoxious this is, regardless of if you were correct in the first place.

Moreover, he isn't looking for retribution, but restitution. He just wants his land back.

“prosecution”, but, no, civil law has statutes of limitations, too, in fact crimes without statutes of limitations are more common than civil wrongs without them.

See, e.g., this discussion of California’s civil statutes of limitations: https://statelaws.findlaw.com/california-law/california-civi...

I think the idea is that most people aren't computers processing laws as if they were code; most humans have to primarily go by what they see happening around them in order to decide what is ok. If they see lots of cars going down a road, eventually they assume that it is public property, even if they never check the public records to see if it is. Similarly with lots of other things.

But, crucially to the Supreme Court's majority decision, you have to have a law saying that this is so (for real estate or intellectual property or whatever), for it to be so, and Congress never did that.

https://www.atlasobscura.com/places/standard-oil-gas-station

EDIT: they have one each in 16 states, so not exactly “lone”

Yes, the point is there is a specific law that says this, and it's really not that unreasonable, since precise property boundaries are always ultimately conventional.

I understand the reason why someone might not trust the most local government (municipal, state, federal governments as appropriate) to manage the registry of landownership complete with dates, dimensions, notables features, and owners, but I find it really weird that problem of knowing exactly who owns what is effectively an orphan in the last resort.

But I guess on second thought maybe it's not that weird? Like if I buy stolen property from someone, and I have no idea that it's stolen, and the original owner comes along wanting it back, it's actually now legally mine, and I'm under no obligation to give it back.

But that's not exactly the same, because in this case the original owner has been harmed, but making the original owner whole would then harm me (an innocent bystander). In the case of the real property issue, "giving back" the land would only harm the person who "stole" it in the first place.

However! If the original "land thief" were to sell the property to someone else, then you're in the same situation. The new owner bought it in good faith, expecting the fenced-in area to truly belong to them, not knowing that the original property lines were drawn such that some of that property actually should belong to the neighbor. So then acknowledging the status quo means hurting the neighbor, but transferring the property back means hurting the new owner (an innocent bystander). At least in this case, the new owner could perhaps sue the old owner for misrepresenting the size of the land.

Anyway, as many others have noted, the problem isn't that the statute of limitations hadn't expired. What was actually happening was that the government was regularly breaking the current treaty that was in force. The ruling was that the government has to follow the law or change it but it can't just apply it however it wants.

On what basis was the rest of Oklahoma not "adversely possessed"?

No, what he is describing is adverse possession, which is different from prescriptive easement; adverse possession converts ownership, prescriptive easement provides an easement (usage rights without ownership.)

> and is legal (depending on your jurisdiction).

No, adverse possession and prescriptive easement are both conditioned on open and notorious trespass, which is an illegal action.

After enough time, the neighbor acquired the title to the land through adverse possession and the fence became legal. Before that, the fence was illegal as it was built on property that the neighbor did not own.

Prescriptive easement is not intended to apply to physical encroachment. It's intended to apply to right of way and ingress/egress issues. Otherwise, it would be an end-run around having to pay for the property.

I don't think that principle would apply in GP's case.

Adverse possession, however, may apply.

English history gave us a very confusing legal structure, where there are statutes, (common) law, and equity -- all variously called "the law."

https://www.azcentral.com/story/news/local/tempe/2020/03/10/...

On what basis does he "officially own" it? Presumably there is a plat on file with your deed of title to your house and its lot that gives the boundaries of your lot, and another plat on file with your neighbor's deed of title to his house and its lot that shows the boundaries of his lot. Presumably both of those plats say the fence is on your property.

I know what adverse possession is. But there are specific conditions attached to it, which will depend on the particular statute in effect in the particular jurisdiction. For example, if the poster I responded to were to tell in court the exact story he told here--"I didn't realize the fence was on my property until I had a survey done, now I realize it and I'm bringing a challenge"--would the statute in effect in his jurisdiction bar him from seeking any relief?

In other words, in both cases the laws, as written, were followed.

The whole thing is an interesting read.

A little absurd, yes, but I'm not sure adverse possession applies so cleanly to state boundaries as people seem to be implying in a few HN threads...

I agree that this sort of law is bonkers, but understand that no one has a "right" to own land[0]. That's a privilege conferred by legal frameworks, and only works because we all more or less agree to abide by them and live in civil society.

[0] The US Constitution does not grant this right, and in fact the Framers were well aware of the divide between those who did and did not own land at the time, and considered landowners to be more deserving of participation in government.

I guess what is bonkers or could use some (historical?) explanation is why real property is given an allowance to be taken through use by others, when the ownership of the land is recorded (though probably unmarked physically). To some, extending that logic might say, I have a right to take this bike because it's just sitting in front of a house unused.

Is it to help turnover unused land through the generations and ensure it doesn't sit idle without active use by a rich person? What's the purpose of such an allowance in the law?

I'm guessing it comes from some old British reason.

AFAIU, title recordation is a relatively recent thing. And the logic of adverse possession, which I think is a vestige of early statutes of limitations (retained out of principle or ad hoc, I dunno), mirrors the logic of later equitable remedies. Fundamentally, adverse possession doesn't magically transfer title, but because the court refuses to grant the ejectment request of the prior possessor who sat on his rights, the person in possession thus has better title than anyone else in the world in terms of what can be claimed in court.

More generally that reflects the logic of traditional property law under the Common Law--ownership is about having better rights to possession than anyone else in a relative sense, not about some singular, abstract title. Emphasis on formal properly titles is how you distinguish continental Civil Law from Common Law, or from many of the rules that controlled prior to the emergence of the Common Law.[1] Once courts of Equity came about you could then ask the court to quiet title, which can be used to change any formal title registrations and prevent future litigation, though technically that would have been (and often remains) unnecessary to legally deed such property. And adverse possession has been so well established for so long that most jurisdictions have kept it enshrined in statute. Though like the Rule Against Perpetuities, many jurisdictions have eviscerated it.

[1] There are actually strong arguments that formal title requirements are a barrier to the development of more egalitarian economies. Formal titles seem an obvious and easy solution when you're in the elite, or in the context of an already well-developed political and economic environment. But formalisms often make it too easy for the rich and sophisticated to screw over the poor--you take their money, you give them possession, then at some later date (maybe even a later generation) it's all taken away because nobody ever got the valid imprimatur of some bureaucrat. You would think such a simple rule would benefit the poor, but that's not how it plays out it practice. Some economists argue these effects remain consequential in many Latin American and other jurisdictions, particularly ex-colonies of continental powers like France and Spain. In the domains of property and contract law, China has quite deliberately incorporated many Anglo-American principles and rules in its legal reforms precisely because formalisms can create hidden costs far greater than what they seem to save. And I think traditional Chinese property law, at least, also leaned in a similar direction, which is why the phenomenon of so-called nail houses existed in the first place--because the courts recognized (albeit haphazardly) certain possessory entitlements that didn't arise from any formal title, which in communist China were few and far between.

Although in a sense this has ceased to matter anyway because any prudent property owner puts up fences around a property to avoid this possibility. At least where this issue is known.

I can see it going both ways. In some poor countries, the protection of the title is the greatest help to the disadvantaged -- to know that no one just by strength of goons or money can take that away. And then in other countries, the poor get to (once in a while) benefit from sitting on land that went unused and eventually having it become theirs.

In the US, everything is so paperworked and documented, that it simply seems strange that this possibility exists.

At least, that's the argument in "The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else" by the Peruvian economist Hernando de Soto. AFAIU, in the intervening years many countries paid heed to his argument and instituted at least minor land reforms, for example making it possible to register transfers where prior records are defective or absent. But unless such reforms are self-executing (as with adverse possession or more modern statutes of limitation), I doubt such reforms are helpful in normalizing the informal property market.

De Soto also makes the case that so-called squatter's rights were an important factor in the emergence of the American middle class, but that has little to do with adverse possession and more to do with rules set by the Federal government in land grants and when dealing with squatters on Federal land. Common Law adverse possession could never operate against the government without their consent.

In modern America adverse possession usually comes into play in disputes over boundaries. A registered property line may have been two feet to the east, but for whatever reason a neighbor has been using that two-foot section as their own for many years, as probably previous neighbors did. When the error comes to light (e.g. maybe the registered title owner wants to build an extension to his house and hires a surveyor), adverse possession is used to settle ownership with the neighbor who has been adversely possessing the strip of land. That's a far cleaner solution than, e.g., an easement, which would just add unnecessary complexity to both neighbors' titles and invite future litigation by subsequent purchasers.

On a similar note, I've read that clearing land to graze cattle in the Brazilian jungle primarily is for laying claims to plots of land purchased formally and informally, rather than for meat production. The presence of cattle is a de facto, and to an increasing extent de jure, proprietary claim on a piece of land. In a sense it behaves very much like adverse possession--the presence of cattle prevents someone else from using the land, given that fscking with someone's cattle can be a shooting offense (like in the American Old West). Some have argued that if there were more convenient ways to secure a claim on land, there would be less pressure to clear cut the jungle. Though, absent concrete evidence that alternatives would lead to less clear cutting, that sounds more like a libertarian talking point designed to appeal to liberals.

Are you in real estate law?

Here are some interesting articles I just dredged up if you're more curious. I learned something new from the second paper; that the association of adverse possession with so-called squatters' rights might be peculiarly American, stemming from turn of the century land rushes where news about adverse possession wins by prospectors spread like wildfire. (AFAIU, the actual history was far more complex. Large land trusts were violating their Federal land grant terms, and "squatters" were often well placed to be granted a new title by the government. The politics of railroad land grants also add twists because at that point everybody, including Congress, was pissed with the railroads, so rules were tweaked to favor squatters. I suspect bone fide adverse possession cases may have been fewer than popularly imagined.)

* Henry W. Ballantine, Title by Adverse Possession, December 1918, https://www.jstor.org/stable/pdf/1327641.pdf. From the introduction: "[T]he great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and to correct errors in conveyancing".

* Itzchak Tzachi Raz, Use It or Lose It: Adverse Possession and Economic Development, June 2018, https://scholar.harvard.edu/files/iraz/files/Raz_UILI.pdf. From the abstract: "A reduction in the security of land right is also associated with an increase of investment in farms and improved access to capital markets, as well as with an increase in the share of owner-cultivated farms and mid-size farms. These findings suggest that the effect of property rights on economic development is not monotonic, and that property rights may be over secure." Of course, I wouldn't describe adverse possession as lessening the security of title. In many cases it strengthens title, incentivizing the development of land in your possession without fear of losing your investment. Such fear might exist even if you were the rightful title holder all along. Your chain of title might disappear into the fog of time, as Ballantine describes, and who knows what surprises lie there. Title warrants and title insurance can't compensate for time, sweat, and other reliance interests. (Civil Law jurisdictions' answer was to require title registration--no transfer is good unless and until sealed and formally recored by the government--but as I said that simply raises the stakes and often favors the wealthy, particularly the aristocracy with titles handed down from colonial or medieval times. Adverse possession is a self-correcting mechanism that works even when everything else breaks down--e.g. title archives are burned or forged. Title registration is the type of solution a programmer would come up with, unfamiliar with the thousands of potential failure modes.)

I tend to believe that land is just different from things like manufactured goods. There's a fixed amount of land (modulo landfill and such), and we all have to live on it. People disagree as to how land should be used, and people believe they should get a say in how other people's land is used because land is a common good.

Land isn't fungible; some people would prefer waterfront property, while others would prefer to live in the woods, but at the same time most people would prefer to live such that they're not too far away from other people, and from things like grocery stores. While there are certainly some people who do want to live remotely, that's not that common. Each plot of land is different, and one person controlling one plot of land means everyone else is deprived of that particular plot.

So we basically say: "ok, you can own this land, but you have to use it in certain community-approved ways, and you have to actually use it; if you don't, we're going to take it away or require you to sell it to someone who will" (ok, the latter half of that is vanishingly rare). Or maybe "if someone else starts using it and you can't be arsed to notice, we're just gonna let them keep using it". And maybe that's not all that unreasonable, despite what I've said about this type of law being bonkers?

But a bicycle is just a bicycle, and the supply of them is effectively infinite. If I'm not using mine, there's no bicycle limit such that my "waste" would cause someone else to not be able to use a bicycle. They can simply go to a store and buy one, an identical one, even, if they want.

The same doesn't hold true for land: me owning and doing something (or not doing something) with a particular plot of land means that no one else can do something with that specific plot of land. If it's undesirable, or in the middle of nowhere where near-identical land is abundant, perhaps it doesn't matter. But if it's in a highly-desirable place where space is limited, it might matter.

(And thus we have the philosophical basis for housing crises.)