Adverse Possession/Nuisance

Question 1

Color of Title Elements

Answer 1

1. Possession of piece of land
2. Invalid Deed - title defect
3. Cannot actually transfer
   (Some states require color of title for certain adverse possession claims)

Question 2

Adverse Possession

Answer 2

Allows a trespasser in unlawful possession of land owned by another to acquire title to that land.

Question 3

Elements of Adverse Possession

Answer 3

1. Continuous for the statutory period
2. Actual & Exclusive possession
3. Open & Notorious
4. Hostile and Adverse

Question 4

Factors looked at for continuous use in adverse possession

Answer 4

1. Season or infrequent use
2. If use if consistent w the property type being possessed
3. Improvements to the land
4. The statutory period in the jurisdiction
5. Whether there was tacking

Question 5

Tacking

Answer 5

Adverse possessors can tack on the time of possession of a prior adverse possessor to meet the statutory period requirement. (Must be in privity-connection between consecutive possessors)

Question 6

Open & Notorious Factors

Answer 6

1. Did adverse possessor act as if they were the true owner?
2. Did the adverse possessor act openly and not attempt to conceal or hide their activities?
3. Notorious- was the community aware of AP’s actions?
4. Lazy land owner?

Question 7

Actual & Exclusive Factors

Answer 7

1. Did adverse possessor share possession of property w the true owner? (not good for APs claim)
2. How would landowner treat property in that jurisdiction?

Question 8

Hostile & Adverse Factors:

Answer 8

1. Consent from owner?
   2.Good faith belief they actually owned the property?
2. Mistake?
3. State of mind?
4. Color of title required?

Question 9

Brown v. Gobble

Answer 9

H: A party claiming title to land by adverse possession may tack time that previous owners have possessed the land to the time the party has possessed the land.
F: Neighbors (Gobbles) thought they owned part of what was really the Brown’s land and argued that the prior owners also used the land they thought was theirs.
R: gobbles were in privity with past owners, therefore got possession of the land.

Question 10

Paine v. Sexton

Answer 10

H: Land in a natural state can be adversely possessed w/o being fully enclosed or cultivated provided that it is used or occupied in a way that puts the lawful owner on notice.
F: Paine’s took care of campground (improvements), had deeds that gave title but the parcel had a confusing history and other ppl had claimed ownership over the years. Sexton claimed ownership (color of title)

Question 11

Nome 2000

Answer 11

H: A party can obtain title by AP thru seasonal use during the entire statutory period w/o claiming the land as their own.
F: Treated as their own property - picked up trash, excluded litterors, planted trees
R: An AP who makes use of land in the same way as an average owner would still qualifies as AP. Use of north end was continuous(came back every season), open & notorious(Nome knew) & hostile (acted as owners)

Question 12

Replevin

Answer 12

An action seeking return of personal property wrongfully taken or held by the defendant.

Question 13

Due Diligence Rule for AP in Personal Property

Answer 13

Owner of property must demonstrate that they took reasonable actions in trying to get their property back.

Question 14

O’Keefe v. Snyder

Answer 14

The discovery rule requires a property owner to demonstrate using due diligence to recover their property in order to pause the SOL. Court looks at this rule over the elements of AP for personal property.

Question 15

Nuisance

Answer 15

A substantial & unreasonable interference with the use or enjoyment of land.

Question 16

Are ultra-hazardous activities that cause nuisance Strict Liability?

Answer 16

YES.

Question 17

Common Defenses of Nuisance

Answer 17

1. Temporal Priority
2. Unusual Sensitivity

Question 18

Balancing Test used to determine whether D is causing nuisance

Answer 18

Cost/Benefit
1. Who was there first?
2. What is the gravity of harm/who is being harmed?
3. Is the party intentionally causing the nuisance? (Spite fence?)
4. Are damages less or greater than the economic benefit?
5. Is the D engaged in useful business?
6. Is there a practical way to modify?
7. Is conduct appropriate for that area?
8. Which party can more cheaply avoid the cost?

Question 19

Dobbs v. Wiggins

Answer 19

H: The court held that the noise from the barking dogs was a private nuisance to the neighbors. F: Wiggins (D/dog training business owner) had around 100 dogs on his property - constantly barking, ultimately affecting the neighbor’s use and enjoyment of their properties.
R: P’s were NOT unduly sensitive, invasion was intentional, Dobbs were at property before
Wiggins, and there was NO practical way of reducing the noise w/o the injunction.

Question 20

Boomer v. Atlantic Cement

Answer 20

H: Injunction granted for plaintiffs but was to be lifted
F: The surrounding neighbors of the Atlantic Cement plant brought a nuisance suit from the dirt, smoke and vibrations from the plant to the plaintiffs properties.
R: Requiring Atlantic to completely close its operation unless a cleaner method of producing cement could be found would be unfair to Atlantic. → Economic benefic of keeping open > harm suffered by neighbors

Question 21

Johnson v. Paynesville Farmers Union

Answer 21

H: Court held that the spraying was NOT a trespass BUT remanded to lower court in regards to nuisance claim.
F: Pesticides from next door farm were sprayed over to organic farm by the wind. Organic farm brought a TRESPASS AND NUISANCE suit against Paynesville Farmers b/c their crops were testing positive for pesticides.
R: The particles from the pesticides weren’t sufficient possession by the defendants, therefore not a trespass.