Can The Government Acquire Private Property Via Adverse Possession?

July 25, 2008 | Roger McEowen

It’s a well-known rule that a private landowner cannot assert a claim of adverse possession against the government.  But, can the government acquire title to private property via adverse possession?  If so, the government is able to side-step the Fifth Amendment requirement that it pay “just compensation” for the taking of private property.  The issue of the government’s assertion of ownership via adverse possession was involved in this case.    

The plaintiff sought a entrance permit for his 174-acre property located next to a state lake.  The person that sold the tract to the plaintiff had owned it since at least 1972.  The property is located next to Lone Star Lake Park – a site owned by Douglas County.  A county road (the public park access drive) runs parallel to the property line of the plaintiff’s property.  In 1972, the prior owner and the county constructed a fence along the county road, but at a location on the private tract that separated the tract from the road ditch.  That left about 10 feet of space between the fence and the edge of the county road.  The prior owner testified that the fence was intended as a boundary fence.  The county never paid anything for the strip of land between the fence and the road pavement and never recorded any interest in the strip. 

The prior owner, in 1996, was granted a field entrance permit from the county road, but never constructed an entrance.  In addition, a residential entrance permit for adjacent property to the north of the plaintiff’s property was granted before the plaintiff’s property was divided off of it.  The plaintiff had no intentions of building a residence on the property or subdividing it, but wanted to restore the existing barn which would include electricity and water.  So, the plaintiff sought more than just a simple field entrance permit, but something less than a full-blown residential access permit.  Without access from the county road, the plaintiff’s access was from a township road designated as a minimum maintenance road that was in poor condition – particularly in times of rain and snow.  The cost of upgrading that road, which the plaintiff would be responsible for, was estimated at $150,000.   

Under Kansas law, if a landowner’s property abuts a public road, the landowner is entitled to access onto the road.  Accordingly, the plaintiff pointed out that his property line wasn’t merely adjacent to the county road, it crossed onto the road.  A surveyor hired by a previous landowner painted a mark on the road where the property line abutted the road.  That mark was later moved 6-8 inches by the County’s surveyor upon further inspection, but the mark remained on the edge of the road’s asphalt.  Nevertheless, the defendant (Douglas County Board of County Commissioners) asserted that the plaintiff did not own property that abutted a public road and was, therefore, not automatically entitled to access.  The defendant claimed that it had acquired ownership of the strip of land between the fence and the edge of the road by adverse possession.  Even though the there was precedence for granting access permits to the road for other properties along the road, the defendant voted to deny the plaintiff an access permit. The plaintiff appealed the denial to the trial court, which granted summary judgment for the Board.

On appeal, the court affirmed.  The court noted that the County Engineer testified that the County believed it was the owner of the disputed strip and had maintained it since the fence was installed.  Under Kansas law, once a party openly, exclusively and continuously possesses property under a belief of ownership for 15 years, that party can become the ultimate owner of the property via a claim of adverse possession.  The trial court determined that the County had met all of the requirements, as did the appellate court on further review.  The County had exclusively maintained the ditch (e.g., mowing and weed control, and general ditch maintenance), from the time the fence had been constructed.  The fact that the plaintiff paid the real estate taxes on the disputed strip was not enough, by itself, to defeat the County’s claim of acquisition via adverse possession.  The court also noted that the County paid half of the cost of building the fence, and the prior owner (who constructed the fence) testified that the fence was intended as a boundary fence.  Chesbro v. Douglas County, No. 98,545, 2008 Kan. App. LEXIS 105 (Kan. Ct. App. Jun. 27, 2008).

Note:  One issue not addressed by the court (the issue may not have been raised at trial) is whether the County’s acquisition of the strip of land via adverse possession violated the Fifth Amendment’s Taking Clause because the county didn’t pay “just compensation” for what it acquired.  The U.S. Supreme Court has never squarely addressed this issue, but one recent federal court has.  In that case, Pascoag Reservoir & Dam, LLC v. Rhode Island, 217 F. Supp. 2d 206 (D. R.I. 2002), aff’d, 337 F.3d 87 (1st Cir. 2003), cert. den., 540 U.S. 1090 (2003), the State acquired part of a reservoir bottom by adverse possession and the acquisition of use of the reservoir by prescriptive easement.  The State argued that acquisition of property by adverse possession or prescription did not constitute a compensable taking.  But, the court found that the company against whom adverse possession was asserted had alleged a sufficient takings claim.  An inverse condemnation was involved.  The State had effectively eliminated all of the company’s economically beneficial use of the property, hadn’t paid for it, and couldn’t escape the Takings Clause by opting to sit by until it had acquired title via adverse possession - and then claim it was not subject to the Constitution.  Ultimately, however, the company’s suit was time-barred.  It failed to bring the lawsuit within the statute of limitations.