Vantage Point: Adverse Possession or Trespass?

When we talk about adverse possession, the topic is a claim of ownership. There are very specific requirements that are common to all states’ statutes: the possession of the land must be open (not hidden), notorious (known), hostile and exclusive (against the “true” owners’ claim of right); and continuous for a statutorily prescribed time frame (that length varying between states). Some states add requirements to also have paid taxes for that time frame, but others don’t care who pays as long as the treasury’s coffers are being filled.

What distinguishes this from trespass? After all, suits to claim ownership by adverse possession might include the phrase “trespass to try title.” That terminology refers to a quiet title action either to clear problems in chains of title or to resolve competing claims to property.

Beyond trespass to try title, general “trespass” can have expensive repercussions, whether the entry on land was intentional or not. This is because “trespass” falls under the umbrella of tort actions, and torts open the door to financial consequences.

A tort is any wrong done to a person or property, other than a breach of contract, for which the court will remedy the situation by awarding damages. Torts come various forms, but the ones surveyors are accused of most often are trespass and negligence. Torts can arise from intentional actions (or inactions) or negligent ones. A finding of liability for a tort means responsibility for the damages, and courts can assess these in the form of compensatory awards to make the injured party whole and/or punitive awards to teach the transgressor a lesson. Like McDonalds serving that million dollar cup of scalding hot coffee to a drive-through customer, surveyors can be found negligent, or we can be judged guilty of trespass when walking across a planted field or trimming vegetation to get a clear sight on a monument. Such tortious behavior can earn the offender thousands in punitive damages.

Now back to distinguishing between trespass and adverse possession. If you win an adverse possession claim, you owe nothing (except legal fees) and gain clear quieted title. But if you fail, then you have been a trespasser and may be liable for damages. The case of Lessee of Ewing v. Burnet (36 U.S. 41) is far from recent, having been heard in the United States Supreme Court in 1837, but is illustrative.

Jacob Burnet owned the house across the street from a vacant lot owned by James Ewing in Cincinnati, Ohio. Ewing’s lot was primarily sand and gravel, with excavation of those materials being the primary use and value of the lot; Ewing leased it out for that purpose. The steepness of the lot prevented it from being fenced.

Part of the problem in this suit was the fact that both Ewing and Burnet claimed deeded title to Ewing’s lot, with a deed to Ewing’s predecessor in 1798 and a deed directly to Burnet from that same grantor in 1803. Burnet started paying taxes on Ewing’s lot in 1810, and did so until this suit began in 1834 after treating Ewing’s lot as his own for all those years. That included claiming the exclusive right to dig and remove sand and gravel from the lot. Burnet gave some people leases and permission to remove sand and gravel from Ewing’s lot for their own use and never let anyone else do so, suing them for—here’s that term—trespass. The law in Ohio then (as now) required 21 years of adverse possession for claims to ripen. Witnesses at trial testified to Burnet’s continuous claim of exclusive rights to the lot beyond that minimum requirement.

Meanwhile, Ewing’s grantor knew of Burnet’s deed but never entered the land, demanded possession, or exercised any act of ownership over it. And Burnet knew of this other claimant to the land before securing his own deed from the original owner (the predecessor to Ewing’s grantor). While Ewing’s claim was rooted in older legal title, which gave him constructive rights of possession, Ewing didn’t act within the statutory window to reclaim the lot. The Supreme Court stated that Burnet “was during the whole time in possession of the lot, as strictly, perfectly, and exclusively, as any person could be of a lot not enclosed or built upon; or as the situation of the lot would admit of.” [Emphasis added] That won him title by adverse possession.

Distinguishing between adverse possession and trespass, the Court noted that intention matters: “An entry by one man on the land of another, is an ouster of the legal possession arising from the title, or not; according to the intention with which it is done: if made under claim and colour of right, it is an ouster; otherwise it is a mere trespass, in legal language the intention guides the entry, and fixes its character.”

About the Author

Wendy Lathrop, PS, CFM, CFS

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.