Adverse Possession in Oklahoma: An Idea WhoseTime Has Come and Gone?By Malcolm E. Rosser IV am! Elizabeth Moseleu Guse

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1. Introduction

The doctrine of adverse possession is one ofthe most unusual concepts in the law in that itrewards a wrongdoer for successfully carryingout his wrongful act. In fact, the wrongdoer isactually rewarded quite handsomely if he dili-gently satisfies all of the requirements of thelaw. Not only is his victim’s remedy time-barred, as is the case with all statutes of limita-tions, but the adverse possessor is also award-ed title to the land he wrongfully possessed.

There must, then, be legitimate purposes forthis rather anomalous rule. Those which aremost often expressed are to bring certainty toland titles and boundaries, to encourage theuse of the land for the benefit of society, and toavoid multiplicity, of suits. Oliver WendellHolmes, Jr. waxed eloquent on the subject,stating that the doctrine is “one of the mostsacred and indubitable principles that wehave” and that “truth, friendship and thestatute of limitations have a common root intime.“’ He explained prescriptive title thusly: “. . . man, like a tree in the cleft of a rock, grad-ually shapes his roots to his surroundings, andwhen the roots have grown to a certain size[they] can’t be displaced without cutting at hislife.“!

Justice Holmes’ justification of the doctrinemay be somewhat overstated. But there is nodoubt that the doctrine is firmly entrenched inour legal history; it has been around, in someform or another, for almost a thousand years. Ithas its roots in the feudal concept of seisin,which originally was essentially the same aspossession.’ If the occupant was “disseised”,he no longer had title as we understand ittoday; the “disseisor” had legal title, althoughhis title was defeasible. Legal writs were sub-sequently developed which allowed the “dis-seissee” to recover possession. Early on, thelimitations periods for such writs were tied by

English statutes to various royal events. Unlessthe disseised party could show seisin by hisancestor after the statutory date, his action wasbarred. The coronation of Richard I in 1189served as the measuring point for over 300years. Other statutorv measuring dates w’erethe coronation of Henry I in 1100, his death in1135 and the beginning of the reign of Henry I1in 1154.’

Fortunately, it is not necessary for Oklahomaattorneys to have a working knowledge of thehistory of the English monarchy in order todetermine the statute of limitations for adversepossession. Except where tax deeds or certainjudicial sales are involved, the relevant periodis fifteen years.’

The seeming unfairness of the doctrine otadverse possession has not been lost on the lackperson. There were efforts in the Oklahomalegislature, in both 1998 and 1999, to legisl+tively abolish the doctrine of adverse posses-sion. This article will provide an overview ofthe existing Oklahoma case law relating toadverse possession, and will then discussthose legislative efforts and consider whetherperhaps the time has come for the doctrine tobe abolished.

II. Adverse Possession in Oklahoma

Adverse possession requires actual, open,notorious, exclusive, hostile, and continuouspossession.” The possession must be continu-ous and uninterrupted for at least fifteenyears.. In an action based upon a tax deed orcertain judicial sales, the time period isreduced to five years.’ There must be a claim tothe property in an “open, public and visiblemanner” showing that the claimant “has exclu-sive control over the land, under a claim ofright to such exclusive possession.“” Theclaimant must show such a “change in the

MALCOLM E. ROSSER IVIs a shareholder in the Tulsa office of Crowe & Dunlevy,responsible for the firm’s commercial real estate practice inthat office. His practice is concentrated in the area of com-mercial real estate transactions, including acquisitions andfinance, as well as zoning and land use, leasing and loanworkouts. He serves on the Tulsa chapter of the NationalAssociation of Industrial and Office Properties board ofdirectors. He has served as OBA Real Property Law Sectionchairperson and has made numerous presentations on thetopics of real estate financing, real estate transactions andmortgage foreclosures.

character of the possession” so as to removeany’ doubt as to the claimant’s holding of theproperty, or as to the owner’s knowledge thatsuch claim is being made.“‘Adverse possessioncannot he established by inference; all theabove-stated elements must be proved by“clear and positive proof.“” Since adverse pos-session claims are fact intensive, each claimwill be examined on a case by case basis and adetermination made depending on the facts ofthat particular situation.

Adverse possession of the land of courserequires the applicant to possess the land;however, actual residence or personal occu-pancy is not a requirement, nor is fencing theland necessary. A successful claimant acquirestitle by prescription.”

One of the difficulties in the application ofthe elements is that they seem to build on andoverlap each other. The elements are not mutu-ally exclusive. The practitioner should keepthis in mind when dealing with an adversepossession claim.

B. Pnrficular issues

1. Hostility

The hostility requirement is not meant to cre-ate bad relations between neighbors, althoughadverse possession claims certainly can ruin afriendship. Unfortunately, the Oklahomacourts have not yet specifically defined thehostility element. In fact, there are very fewcases even dealing with it. Contrary to whatone might think, the element of “hostility””does not go to the state of mind of theclaimant, but rather the nature, viewed objec-tively, of the claimant’s possession. Theessence is that the claimant’s possession must

be hostile to, or clearly inconsistent with, own-ership by the record owner. Where an adverseclaimant used the property by placing a fenceon the property to contain his cattle, theclaimant survived the defendant’s allegationthat his possession was not hostile. Theclaimant’s dual purpose for the fence, to estab-lish a boundary and prevent his cattle fromstraying into the river, was not inconsistentwith adverse possession, even though thedefendant claimed that the dual purposeshowed a lack of hostility.

A very early court used hostility in connec-tion with disloyalty, stating that the posses-sor’s actions must be of such certain “disloyal-ty and hostility” as would import knowledgeof the possession.‘4 In the syllabus of the courtin another case, the court found that the hostil-ity and claim of right ‘element’ (they seem tobe one, at least in this situation) were metwhere the claimant used unenclosed land forgrazing and the land was generally known inthe community as the claimant’s land.15 Inanother case, the court determined that awidow who initially occupied the land pur-suant to her widow’s homestead right coulddemonstrate hostility to the homestead interestat issue if she abandoned or repudiated herhomestead rights and demonstrated continuedpossession under an independent claim oftitle.”

2. Knowledge or Mental State of Claimant

The classic adverse possession case presentsthis way: a rancher puts up a fence but mistak-enly locates the fence on his neighbor’s prop-erty. Fifteen years pass. The neighbor, forwhatever reason, has a survey performed ofhis property, discovers the encroaching fence

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ELIZABETH MOSELEY GUSEIs an associate in Crowe & Dunlevy’s Tulsa office where shepractices in the business department focusing on real estatetransactions. Selected as Phi Delta Phi’s International Gradu-ate of the Year in 1998, Ms. Guse received her law degreefrom the TU College of Law where she graduated with high-est honors as a member of the Order of Curule Chair. Whilestudying at TU, Ms. Guse served as a Notes and Commentseditor for the T&n Law ]ournal and was the recipient ofnumerous awards, including CAL1 Excellence for the FutureAwards in Real Estate Finance, Property II, Mergers andAcquisitions and Legal Authorities.

and of course wants it moved. The ranchersays no; he says the fence is now the boundarybetween the properties, regardless of what thesurvey says. These families, who were oncefriendly, now enlist the help of the courts toresolve their differences. Who wins? Does thefence stay or does it go?

The Oklahoma courts have decided that aclaimant’s mental intention - whether he knewhe was occupying his neighbor’s land, orwhether he consciously intended to take titleto his neighbor’s land - is not relevant in theadverse possession case. The courts haveexamined the issue of the rancher’s intent andbelief, i.e., innocent belief that the fence wasplaced in the correct location, or “evil” intentto take land which does not belong to him, andthe courts have ultimately determined that“intent” and “motive” of a claimant are atodds with the very purpose of the prescriptivetitle statute, which is to prevent stale claims toland against long term occupiers of land. Inother words, the court will not examinewhether or not the claimant “knew” he wasoccupying someone else’s land. The result: thefence stays.”

This was not always the case. In the late1960’s, during an era when the court farmedout some of its case load to members of the bar,a different result was reached. In 1968, therancher would have lost. At that time, thecourt decided that possession by mistake wasnot adverse and accordingly the possession, nomatter how long it continued, would not ripeninto title.‘” While this particular case has neverbeen overruled, the reasoning has since beenlooked upon with disdain as reflective of anera when the opinions “sometimes reflectedthe desires of the authors [attorneys that draft-

ed them] rather than the law.“19 As a result,under today’s jurisprudence, the rancher winsand the fence stays. The same result occurredwhen the parties used a creek as a “mistaken”boundary; the claimant acquired title by pre-scription.2”

3. Boundary by Acquiescence

Many Oklahoma cases discuss the concept of“boundary by acquiescence.” This somewhatmisleading term is used because, in manycases, both parties are, or the court finds thatthey should be, aware of the location of a fenceor other boundary monument, but are notaware that the fence is not located on the actu-al property line. This doctrine is essentially arestatement of the Oklahoma rule that theclaimant does not have to know whether or notthe fence is located on the true boundary of theproperty. Knowledge is not the issue. Rather,the court will examine whether the partiesused the fence as the boundary for the proper-ty for the requisite number of years. If so, thenthe fence will be deemed to be the new bound-ary for the property.

Boundary by acquiescence is one of the mostcommon types of adverse possession cases.Various defenses have been used in an effort toavoid its application. Defendants have claimedthat they did not know that a fence was on theproperty and that they removed the fence oncethey discovered it because they believed it wasin the wrong place.” Such excuses have notprevailed. They have also alleged that the doc-trine of boundary by acquiescence requiresthat the parties agree that the fence is the trueboundary line.*’ This contention was alsorejected by the court. The court stated theintention of the parties in establishing the

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boundary line is not determinative. Rather, thecourt will examine whether or not the partiestreated the fence as the boundary. If so, and ifsuch treatment occurred for the requisite timeperiod, then the parties acquiesced to a newboundary.

In a different case, a defendant alleged thatacquiescence requires knowledge of the trueline.2’ This was also rejected by the court. Thefence was recognized by the owners as thedividing line for over fifteen years and hence,the fence became the boundary between thelands. Another defendant claimed that acqui-escence only arises out of a dispute or uncer-tainty over the true boundary line.‘” Whilethere are some jurisdictions that have requireda dispute or uncertainty in acquiescence cases,the Oklahoma courts have followed the line ofreasoning that does not require dispute oruncertainty. As such, this defense has also beenrejected. In another case, the defendant simplydenied that he or his predecessors acquiesced.The court found his denial irrelevant when theevidence supported a finding that the partieshad respected the boundary established by thefence for over fifteen years.=

4. Permissive Use

If a claimant has possession of land underthe permission of the record owner, then theclaimant’s possession is not adverse. Such isthe case when a claimant possesses land undera lease, or some other consensual grant. If theclaimant continues to possess the land after thelease expires, then such possession wouldbecome adverse.

In some cases, the record owner has sent aletter to the adverse claimant to attempt toestablish that his or her continued possessionis permissive. Such a letter essentially statesthat “we know you are there and your use ofour land is pursuant to our permission.” Onemight think that this letter would do the trick.However, sending the letter does not changethe nature of the claimant’s possession fromadverse to permissive. The record owner mustdo more, such as taking action to remove ,theclaimant from his land.26 While the case did notaddress this specifically, it stands to reason thatthe parties should be able to expressly agreethat possession is permissive. This agreementcould be accomplished by a letter from therecord owner to the possessor which the pos-sessor signs acknowledging that his posses-sion is permissive and is at the discretion of the

record owner. This letter agreement would bequite different from the “we know you arethere” letter since it would involve an agree-ment between the parties instead of a one-waycommunication.

5. Lack of Knowledge by the Record OwnerAs a Defense

What if the claimant never notified therecord owner that he or she was making aclaim to the property? The record owner neveraffirmatively “knew” that a claim was beingmade. Can the record owner use this as a validdefense to a quiet title action? A landownerrecently tried this defense to no availz7 Thesame defense, alleging that the claimant didnot establish a “claim of right” to the propertysince the record owners were not put on noticeof the adverse claim, was attempted in the late1970’s without success.28

An adverse possessor is not required toknock on the door of the record owner and tellhim that a claim is being made to his property.Rather, the record owner, assuming he is anowner of “ordinary prudence” (and no excuseis given for an owner that does not exerciseordinary prudence) needs to examine his prop-erty, go on the property and see what changeshave been made, if any, and determine if any-one is there that should not be there. A recordowner who is taking care of his property willknow its status; he will have “notice” of anyadverse claims simply by checking on theproperty. And if he does not check on his prop-erty, and if an adverse claimant is in actual,open, notorious, exclusive and hostile posses-sion of the property, then the record owner willhave constructive notice of the adverse posses-sion claim.

The Oklahoma courts tell us that if theclaimant’s actions are definite and observable,such that an owner, if he visited the property,would see that a claim was being made to hisproperty, or at least enough to put the owneron inquiry then such actions constitute con-structive notice of adverse possession. Therecord owner does not have to have actualknowledge that a claim is being made. Con-structive notice, based on the actions of theadverse claimant, is sufficient.

The outcome changes dramatically if anadverse possessor has titled quieted againsthim in a quiet title or ejectment action and thencontinues to remain in possession of the prop-

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erty. The Oklahoma Supreme Court consid-ered a case where the claimant retained pos-session after title had been quieted in therecord owner. In that case, the court denied theadverse possession claim even though theclaimant was listed as the owner on the taxrolls and the evidence indicated that theclaimant was not holding possession subordi-nate to any person.” While those facts mayhave been sufficient to provide constructivenotice in the typical adverse possession case,constructive notice is not effective in this situa-tion. In order to succeed, the claimant mustshow that “express notice” of the adverseclaim was “brought home” to the recordowner; otherwise, the claim will fail.”

6. Color of Title

Color of title has been defined by the Okla-homa courts as that “which in appearance istitle, but which in reality is not title.“” Otherjurisdictions have established color of title asan independent element for adverse posses-sion claims. Oklahoma makes reference tocolor of title, but not as a separate element.Rather, in the litany of elements for adversepossession in Oklahoma, color of title is listedas an either/or, the claimant having the obliga-tion to demonstrate possession under “claimof right or color of title.“32 The claim of right orcolor of title element does not appear to be anexclusive, separate element for adverse posses-sion; rather, it appears that this element is sim-ply a restatement or summary of all the otherelements of adverse possession.

C. When Title Vests

Once al l of the elements are met, theclaimant should become “vested” by adversepossession. Oklahoma jury instructions deal-ing with adverse possession have stated thatthe adverse possession must continue for thestatutory period of fifteen years in order fortitle to vest in the claimant.33 However, it maybe that this apparently-vested title could belost if the claimant relinquishes possessionafter the time periods runs. Say a claimantowned twenty acres and obtained title byadverse possession to an adjoining one acreparcel which was used and occupied togetherwith the twenty acre tract. Say further that theclaimant fell on hard times and had to conveythe twenty acre tract to his lender bank by adeed in lieu of foreclosure. At that point the fif-teen-year period had clearly run. Although thedeed to the bank only covered the twenty acre

tract, the bank took possession of both tracts.Would the claimant lose his “title” to the oneacre tract even though his title to the one acretract had theoretically vested? Yes.” In this sit-uation, the court determined that vesting waslost when the claimant “relinquished posses-sion” of the one acre tract. Even though thedeed to the bank did not describe the one acretract, the court determined that the claimanthad relinquished possession to the one acretract and that title to the one acre tract thenbecame vested in the bank.

But didn’t the claimant already have “title”to the one acre tract? If so, wouldn’t he haveretained title since the one acre tract was notincluded in the deed? The court specificallystated that once a claimant has met the ele-ments for adverse possession, he does become“vested” with title.15 But this “vested” title isapparently not quite complete, because it canbe lost merely by giving up possession. If onegains title to land by adverse possession, theOklahoma Court of Appeals appears to believethat one must continue to remain in possessionof the land in order to retain that title. Theholding of this case appears to be contrary tothe general rule in other jurisdictions.‘”

As a result, it appears that if a claimantwants to protect his title by adverse posses-sion, the claimant must bring a quiet titleaction once all the elements for adverse pos-session have been met and while he is still inpossession. The quiet title action will give theclaimant a judicial decree showing title in theclaimant, which should then allow theclaimant to leave the land, or sell an adjoiningtract, without risking loss of title. Otherwise,the Oklahoma courts indicate that a claimantmust continue to maintain possession of theland, even after the adverse possessionrequirements have been met, in order to retaintitle to the land acquired by adverse posses-sion.

D. The Statutory Time Period

The statute of limitations for the recovery ofreal property is generally fifteen years, exceptin tax deed situations and certain judicial sales,which are discussed below. In order for aclaimant to establish title by adverse posses-sion, he must show continuous and uninter-rupted possession for the fifteen year period.In order for a record owner to successfullydefend his land against a claim for adversepossession, he must bring an action to recover

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his property (an ejectment action) within fif-teen years after the adverse possession begins.

The “continuous and uninterrupted”requirement is a crucial one. If the court findsthat the possession was broken, then eventhough some of the time would have beencharacterized as adverse, the claim will bedenied and the time element will start all overagain, The break in time restores what thecourt calls “constructive possession” to therecord owner.37

If an individual claimant has not been in pos-session of the land for the requisite fifteenyears, but if the claimant’s time, when takentogether with its predecessor in interest’s timetotals fifteen years, then the claimant would beable to establish continuous and uninterruptedpossession by “tacking.” Tacking is allowedwhen one adverse occupant follows anotherwith no break in possession between the suc-cessive occupants. Tacking allows the currentpossessor to meet the continuous and uninter-rupted requirement by using his predecessor’stime, so long as the predecessor held the landadversely, to achieve the fifteen year timerequirement.38

E. Trial Issues

1. Standards of Proof and Evidence

Adverse possession must be established by“clear and positive proof”; it cannot be estab-lished by inference. The Oklahoma courts willstrictly examine adverse possession. Everypresumption is in favor of possession subordi-nate to the record owner. The claimant has theburden of proving all the elements. The Okla-homa courts have not clarified whether this“clear and positive” proof standard is the samething as the “clear and convincing” standardwith which attorneys are familiar. Obviously,the record owner would argue that the casesdo mean that the standard is “clear and con-vincing”; the claimant could take the positionthat, as with most other civil cases, the stan-dard is simply “preponderance of the evi-dence,” but that the evidence he presents mustbe of a high quality.

The question of adverse possession is a ques-tion of fact to be determined from all the factsand circumstances in evidence by the court.39Corroboration of evidence has not been arequirement by the court where the evidencemet the required burden of proof.4O Witnessesare used at trial to establish or discredit the evi-

dence of adverse possession4’ Witnesses havealso testified as to the performance of certainactions by a claimant with respect to the prop-erty.4*

2. Right to Jury Trial

The Oklahoma courts have specifically stat-ed that a quiet title action is one of equitablecognizance, indicating that a jury trial wouldnot be appropriate. Nevertheless, there havebeen Oklahoma cases where the record ownersued to quiet title and recover possession ofthe land and the matter was tried before ajury.43 Unfortunately, the court did not explainwhy a jury trial was used. In a different case,the plaintiff brought a quiet title action claim-ing adverse possession and the defendantcounterclaimed for quiet title (which the courtcorrectly identified as a counterclaim for eject-ment, not a quiet title counterclaim). The trialcourt adjudicated the matter in a non-jurytrial.” A quiet title action is not the only actionin which an adverse possession claim mayarise. Injunctive relief has been sought in situ-ations where the holder of title by adverse pos-session seeks to prevent the record owner frommoving a fence after the elements of adversepossession have been met, thus vesting title inthe possessor of the fenced in area.45 It seemsthat a plaintiff-owner might be able to obtain ajury trial by characterizing his action as one forejectment.

III. Related Issues

A. Co-Tenants

Since land held by one co-tenant is presumedto be held for the benefit of all co-tenants,46 theelements for adverse possession against a co-tenant are more stringent. There must be eitheran actual ouster of the co-tenant by theclaimant, or an actual denial of the co-tenantrights by the claimant and notice or knowledgeof the ouster or denial of rights must be“brought home” t o t h e co-tenant.47 T h eclaimant in an adverse possession case, includ-ing a co-tenancy situation, must meet all theelements with clear and positive proof.# Infer-ences are not permitted. There is a presump-tion in favor of possession subordinate to thetrue owner.49

Mere possession by the co-tenant is not suffi-cient to establish title by adverse possession.5oPossession alone does not act as an ouster or a

’claim of right to the property The claiming co-tenant must “show a denial or a repudiation of

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his co-tenant’s rights, or the possession will bedeemed to be held in subordination to therights of the co-tenant.““

If you have a co-tenancy adverse possessionsituation, you should consider whether theclaimant ever refused to account to the otherco-tenant(s), openly repudiated the co-tenancyrelationship, or filed an ejectment actionagainst the other co-tenant(s).” If the claimantacted in one of these manners, it is possiblethat the statute of limitations began to run atthe time of such action.

B. Lot Split hues

In a boundary case, it quite often happensthat the adverse possessor acquires title to aportion of an adjoining platted lot. Does thatacquisition constitute a “lot-split” which mustbe approved by the appropriate regulatoryauthority in order to be valid? It has been heldthat title by adverse possession is a “new title”,not a conveyance or transfer from the previousowner,” so one might argue that the lot-splitapproval requirement would not apply. Butsuch ownership would certainly violate thepurpose of the lot-split statute, which is to pre-vent unapproved ownership of small or irreg-ular tracts. Perhaps the prudent thing to dowould be to seek approval, which would gen-erally be granted so long as the applicantagrees that the “new” property must always besold or transferred along with his originaltract.

C. Effect ofMortgages

When an adverse possessor obtains title byprescription, the Oklahoma statutes specifical-ly state that this title by prescription “is suffi-cient against all. “” While the Oklahoma courtshave not yet addressed this specific issue, itstands to reason that a record owner’s mort-gage would be extinguished if a claimantestablished title to the mortgaged property byadverse possession. The Oklahoma courtshave cancelled a lease and mortgage that wereexecuted by a claimant where the recordowner prevailed in an ejectment action.”

D. Tax Deeds and jlldicial Sales

Tax deeds have the effect of wiping out arecord owner’s title to property as well as anyclaim for adverse possession. The grantee inthe tax deed takes clear title, at least in theory.In actuality, title acquired by tax deed is quiteoften subject to doubt due to potential claims

from pre-tax sale olvners or encumbrancers. Adifferent time period applies for adverse pos-session in a tax deed situation. Instead of theusual fifteen year period, a five year period,commencing with the date of recording of thetax deed, applies:‘, Otherwise, the same ele-ments for adverse possession must be satis-fied.‘.

A five year period is also applicable to claimsbased upon certain judicial sales and transfers.Included are execution sales (which wouldinclude sheriff’s sales in mortgage foreclo-sures), sales occurring in partition actions,transfers under probate decrees, sales byguardians and personal representatives.‘” Theperiod generally starts to run at the time ofrecording of the operative deed or decree. Thetime period runs whether the sale is void orvoidable.“” However, as with tax deeds thegrantee must be in possession throughout thefive-year period.“”

E. Milwrals

Say you have a client that succeeds in a quiettitle action based on adverse possession. Doesthat client now own the minerals as well? Theanswer depends on whether or not there was aseverance of the mineral interest from the sur-face interest before the adverse possessionbegan. Adverse possession of the surface is noteffective against the severed minerals, but iseffective against unsevered minerals.“’ As such,the practitioner needs to determine whether ornot the mineral estate was severed from thesurface estate.“-‘ If severance has not occurred,then title by adverse possession will includeminerals not severed before the commence-ment of the adverse possessionh3 Additionally,severance, absent ouster, after commencementof adverse possession does not interrupt orstop the possession.“’

Say the record owner leased minerals on hisland, land which is subject to a claim for titleby adverse possession. Could the recordowner use the very existence of the lease of theminerals as a successful defense to the adversepossession claim? The answer depends on thefacts, but it appears to be no. The Oklahomacourts have determined that executed oil andgas leases are not sufficient to bar a claim ofadverse possession where the claimant hasused the surface for cattle.“’

F. Government hues

Most attorneys are familiar with the rule thatthe statute of limitations does not operateagainst the state or its subdivisions where thepublic rights are involved. As a general rule,one cannot obtain title by adverse possessionagainst the state.

1. Schools

In determining whether or not title could beobtained by adverse possession against schoolproperty, the Oklahoma courts had to deter-mine whether or not public rights wereinvolved. If so, the adverse possession claimwould fail. The court, after examining numer-ous statutes concerning school property, deter-mined that if a school board could not disposeof school property except as provided for bystatute, then the school district could not bedivested of its title by inaction through anadverse possession claim. The result: in Okla-homa, one cannot obtain title by adverse pos-session against school property.”

2. Subdivisions of the State

As stated above, one cannot gain title byadverse possession against the state or its sub-divisions where public rights are involved.There are very few cases addressing the issueof subdivisions. From our discussion concern-ing schools, we know that title cannot beobtained by adverse possession against thestate or its schools. As to other subdivisions ofthe state, the court has established the “publicright” test as the dispositive issue. The courtwill ask whether the affected right is public orprivate. If it is a public right, it will “affect thepublic generally” whereas a private right“merely affects a class of individuals withinthe political subdivision.“67 The statute of limi-tations will not operate against a subdivisionof the state where public rights are involved.

Using these criteria, the court determinedthat the statute of limitations did not runagainst the Commissioners of the LandOffice.6” Since the commissioners could not dis-pose of property in a foreclosure action exceptas provided for in the statutes, the court deter-mined the land was acquired on behalf of thepublic; hence a public right was affected andthe statute of limitations would not be effec-tive.

In a separate case, the court maminedadverse possession against a city. The court

denominated the city as “an arm of the State,”which is slightly different terminology from“subdivision” of the State.h’ Nevertheless, thecourt determined that rules applying to thestate also apply to the city. In this particularcase, the court concluded that any judgmentquieting title against a city based on adversepossession is a void judgment which may bevacated at any time.‘” In a recent, unpublishedOklahoma Court of Appeals case, the Courtdetermined that property held by a city in itsprivate or proprietary capacity may beacquired by adverse possession.”

3. Government Acquiring Title by AdversePossession.

While the government can use the statute oflimitations defensively by prohibiting claimsagainst state property, it can also use thestatute of limitations offensively in order toestablish title in itself by adverse possession.The City of Norman established title to a tractof land which it had been using as a part of oneof its city parks where the City proved that ithad maintained the land (filling depressionsand sowing grass) and used it continuously forthe statutory period.72 As such, the courtupheld the trial court’s decision to quiet title inthe City. In another case, the court determinedthat Oklahoma City had met the elements ofadverse possession to land which was beingused for a roadway. The court agreed with theCity’s claim for adverse possession and foundthat it had developed the boulevard (GrandBoulevard) which had been open to the publicfor over fifty-five years at the time of theaction.7”

In another case, the State failed to succeed ina claim for adverse possession where the Stateand the record owner of the property were inpossession of the property at the same time.74Where there is mixed possession of property,the court will find that the one with better title(in this case, record title) will be deemed to bein possession. Since two parties cannot holdthe same property against each other at thesame time, the claim for adverse possessionwill fail.

4. Co-Tenancy and the State

There are situations were the State hasowned property as a tenant in common insteadof absolute fee simple. In the co-tenancy situa-tion, the State’s co-tenant has attempted todefend a claim for adverse possession against

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its co-tenancy position by alleging that sinceadverse possession is not effective as againstthe State, it should not be effective as againstthe State’s co-tenant. The Oklahoma courtshave rejected this argument. Instead, title maybe obtained by adverse possession as againstthe private co-tenant, but not against theState.‘i

G. Prescriptive Easements

The elements for obtaining an easement byprescription are basically the same as with aclaim for fee title by adverse possession. Theactivity on the property must be actual, notori-ous, hostile, open, visible, continuous, exclu-sive and with a claim of right, such that partieswill see that the property is not held in subor-dination to any title or claims of others, butagainst all titles and claimants. There is a pre-sumption in favor of possession in subordina-tion to the rightful owner. The claimant mustprove each element with clear and positiveproof; inferences are not permitted.;” If the useis permissive, then it will not give rise to a pre-scriptive easement no matter how long it isexercised. The claimant must demonstrate aclaim of right to the easement.

1. Nature of the Claim

A prescriptive easement gives the claimantthe right to use another’s land, not actual titleto the land. The most common fact patterns ina prescriptive easement situation concern aclaimant’s alleged use of a roadway on neigh-boring property, The claimant uses the road-way for ingress and egress. A vehicle drivesover the roadway across the neighbor’s prop-erty. Of course, the vehicle is not continuouslydriving across the property. This is very differ-ent from a claim for title by adverse possessionwhere the use of the land is more constant. Asa result of the factual differences between a feeversus easement situation, it is factually muchmore difficult to establish a prescriptive ease-ment than fee title by adverse possession.

2. Unique Issues

Because of the factual differences, the courtexamines prescriptive easements using twodifferent tests. If the land on which the ease-ment is claimed is open land (not enclosed bya fence), then the burden for proving the ele-ments of a prescriptive easement is more strin-gent on the claimant. The reason is that use ofunfenced land, especially in open range areas,for roads is quite common and is often permis-

sive. If the land on which the easement isclaimed is enclosed land, then the court willpresume that the owner had knowledge of theadverse use, ultimately resulting in a rebut-table presumption of an easement once therequisite time has passed.

The courts have not provided an excellentexample of when the facts show a prescriptiveeasement and when they do not. In fact, theOklahoma courts have rarely made any specif-ic application of the facts to the law in pre-scriptive easement cases. Instead, the courtssimply state the facts (sometimes) and deter-mine that the facts either do or do not supportthe elements for a prescriptive easement. Theissue is generally decided based on whether ornot the claimant’s use was permissive. Exten-sive analysis is generally left out. In any event,the following cases are examples of fact pat-terns where the courts have denied or granteda prescriptive easement:

(i). The claimant used a neighbor’s unen-closed land to access a public road, eventhough necessity did not demand such use.The trial court granted the easement, but thetrial court’s minute order granting the ease-ment failed to provide a legal description ofthe easement. On appeal, the court found thatthe use was permissive, did not meet the fif-teen year statutory requirement and was notunder a claim of right, and that the court’sminute order was void for failure to contain alegal description of the purported easement.”

(ii). The claimants used a roadway over theirneighbors’ unenclosed farm for approximately40 years. When the neighbors passed awayand their daughter moved to the farm, sheenclosed the farm, including the roadway.Since the claimants refused to close the gateproviding access to the farm, the daughterrefused to give the claimants access to theroadway. The claimants alleged that their useof the road for so many years created a pre-sumption of adverse use. The court did notagree. The court noted that the burden is morestringent for a claim of an easement overunenclosed land and found that the use wasinitially permissive and continued to be per-missive.‘”

(iii). The claimant’s initial use of a roadwayover unenclosed land was permissive. As such,the claimant had the burden of proving whenthe use became adverse. The land was ulti-mately enclosed with a fence which was main-

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tained and closed at certain times of the year.The claimant only used the roadway duringportions of the year. As a result, the trial court’sgranting of a prescriptive easement was over-ruled.79

(iv). Where the claimant had used a roadwayover enclosed property for approximately fiftyyears, the court found a presumption of aneasement. The land owner then had the bur-den of rebutting the presumption by showingpermissive use. The court determined that thetrial court’s conclusion that the claimant’s usemet the requirements for a prescriptive ease-ment was not clearly against the weight of theevidence. Hence, the prescriptive easementwas granted.Xfl

IV. Legislative Initiatives to Repeal AdversePossession

In 1998, Rep. Gary Bastin (D-Del City) intro-duced HB2558. That bill would have repealed,prospectively, the doctrine of adverse posses-sion by repealing Sections 332 and 333 of Title60. The bill passed the House, and then went tothe Senate where it was referred to Sen. BradHenry’s Judiciary Committee and killed.According to Rep. Bastin (who chose not to runf o r r e - e l e c t i o n i n 1998), h e h a d b e e napproached by a constituent who had inherit-ed a 160-acre tract of land which had beenowned by his grandmother and then by hismother. No one had lived on the land for anumber of years. The constituent discoveredthat an adjacent owner moved a fence - inten-tionally, according to the constituent - toinclude five acres of the grandmother’s land.Once fifteen years had passed, the adjacentowner filed suit to quiet title based on adversepossession. It was at that point that the con-stituent inherited the property, found outabout the suit and became acquainted with thedoctrine of adverse possession. The con-stituent felt that the land had been stolen fromhis family and that the legal system hadallowed it to be stolen.*’

Similar repeal legislation was introducedand killed in the 1999 session. Perhaps becauseof the failure of those two efforts, no such leg-islation was introduced in 2000. But there is lit-tle doubt that popular sentiment against thedoctrine is still strong.

Some would argue that with modern devel-opments such as global positioning systems,more accurate surveys and well-maintained

written land records which have been in placesince sovereignty, adverse possession nolonger serves its original purposes. Ownershipcan be easily verified simply by checking landrecords, many of which are now computer-ized, and, so it is argued, the chances of a legit-imate dispute about whether the equivalent of“livery of seisin” occurred many years in thepast are virtually nil. The good-faith landown-er who mistakenly locates a fence should notbe rewarded with extra land when he couldeasily have had an accurate survey done tolocate his true boundaries. And certainly abad-faith trespasser should not be allowed touse the law as a weapon to steal land from aninnocent owner.

All of this, of course, runs squarely into thelegal theory of adverse possession. No onewould deny that there should be a statute oflimitations for ejectment actions, just as thereare statutes of limitations for tort and contractactions. In fact, in most every jurisdiction thestatutory period for adverse possession ismuch longer than for other lawsuits. It seemslogical that the landowner who sits on hishands for those many years should lose hisright to sue, just as the injured victim whowaits too long to sue will not be able to recov-er. If a trespasser cannot be sued for ejectment,then he cannot be removed by anyone, and it isnot much of a logical leap, at least for attor-neys, to say that the trespasser has good title.

In addition, in Oklahoma adverse possessionis most definitely useful as a title clearingmechanism, at least in the eastern part of thestate. Title to lands originally allotted to mem-bers of the Five Civilized Tribes is quite oftenclouded by missing probates or heirship deter-minations for deceased allottees or their heirs.Since the Marketable Record Title Act?* is not astatute of limitations, and thus is not applica-ble to restricted Indians,83 about the only waysuch clouds can be properly removed is by aquiet title suit, based in large part on adversepossession. If the doctrine were to be repealed,it would be much more difficult, if not impos-sible, to resolve such title defects.

V. Conclusion

Perhaps more than any other concept that isa part of our body of law, the doctrine ofadverse possession has been applied to pro-duce inequitable results. Nevertheless, it is sofirmly rooted in the common law, both in Okla-homa and elsewhere, that it is hard to imagine

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its disappearance. It may be that the mere factthat it has survived for so long proves its use-fulness. Its theoretical basis is quite elegantand intellectually sound. However, most attor-neys would have to admit that they have, atone time or another, squirmed a little bit whenattempting to justify the doctrine to those out-side our profession - especially to a client whohas just lost a piece of valuable real estate.

1. Backman, James H. and Thomas, David A., A Practical GuwDisputes Between Adjo&g Landoc\,ners-Easements, 5 7.01[2] (1996).

2 Set Id3 1 hompson, Georgr \r.’ and Grimes, John S , Commentarws on

the Modern Law of Real Property $2540 (197914 Backman sunro note 1 at 6 7 071315. Se ova.& Si.4;. tit. 12, 5 93 (1991): ’6. Ser Bynum u. Liberty Natmnnl Bmkatrd Trust Company ofOklahanm

City, 338 F.2d 412, 414 (10th Cir. 1964).7. Sre wu SIAT. tit. 12, 5 93(4) (1991).8. See cxa.4 5I*T. tit. 12, 5 93 (1991).9. Christ Church Pentecostal z’. Richtrrbq, 334 E2d 869, 874 (10th

Cir. 1964) (citing Fes&r II. Thompson, 130 P.2d 513 (Okla. 1942)).10. See St. l.ouia-Snn Fmnl-isco Ry. Co. <I. Walter, 305 F.2d 90, 93 (10th

Cir. 1962).11. Bynum, 338 F.2d at 414.12. Sw OKLA STAR. tit. 60, 5 333 (1991).13. Sw Fadrm 1). Kimball, 612 P.2d 287 (Okla. Ct. App. 1979).14. Gassln 11. Mcirrnkin, 48 P.2d 320, 326 (Okla. 1935).IS. Sw Sfcnr u. Franklin, 288 1?2d 412 (Okla. 1955).16. Sw Turner 1’. Hubbell, 288 P.2d 394, 398 (Okla. 1955).17. Sw Thrrct a. Polk, 620 P2d 467 (Okla. Ct. App. 1980).18. See Sudheinwr 13. Cheatham, 443 P.2d 951 (Okla. 1968).19. ~hrcet, 620 P.2d at 470 (see footnote no. 6 in the opinion)20. SW Leach u. West, 504 l?2d 1233 (Okla. 1972).21. See Berry 11. Mendenhall, 964 P.2d 974 (Okla. Ct. App. 1998).22. Set Id.23. SW Bucknw ~1. Russ~Jl, 331 P2d 401 (Okla. 1958).24. Sre Lewis u. Smith, 103 1?2d 512 (Okla. 1940).25. Scvz Unpublished Opinion of the Oklahoma Court of Appeals,

Div. No. 3, Appeal No. 90,727 (April 9, 1999).26. Se Macias u. Guyrnon Iudust. Found., 595 P.2d 430 (Okla. 1979).27. Se Krosrr~ico u Pettzf, 968 P.Zd 345 (Okla. 1998)28. SW Fadern, 612 P2d at 290.29. See Shqherd u. Lyle, 395 I?2d 641 (Okla. 1964).30. Id. at 643.31. Boland P,. Heck, 65 I?2d 1213 (Okla. 1937).32. Krosmico, 968 P.2d at 349.33. Set Kinkadr u. Simpson, 197 1?2d 968, 970 (Okla. 1948).34. Clwr Land Co. u. Wright, 858 P.2d 110 (Okla. Ct. App. 1993).35. Id. at 111.36. Set T~HOMPSOV, supra notta 3, at 5 2552.37. Ser Loris ~1. Patrick. 414 P.2d 249, 252 (Okla. 1966) (citing Ander-

son 1’ Francrs, 57 P.2d 619, 620 Okla. 1936)).38. SPP Burkrwr u. RusseJI, 331 F.2d 401 (Okla. 1958).

39 Ser Mitchell 1, Graham, 143 P2d 815 (Okla 1943)(see syllabus no3 b\r the court)

40 Ser Fadrm, 612 P2d at 29141 See Leach, 504 P.2d at 123642 SEC Wmlow i’ Watts, 446 P2d 598, 600 (Okla 1968)43 See Kmkndc, 197 P2d at 96944 See Krosmro, 968 1’2d at 34645 See Thrrrt, 620 P2d at 47046 Sm Krelcr 7’ McNeu, 86 P2d 1004, 1007 (Okla 1939)47 Se W~~sthemer z’ Neustadt, 362 P2d 110, 111 (Okla 1961) See nl>o

Coats P’ J&y, 7 P2d 644, 652 (Okla 1931), S-1 Louis-San Fran~~sco Ry Co ,305 F 2d at 93

48 SfP coats, at 65449 See WzJcox u Wlckrzer, 266 P.2d 638, 642 (Okla 1954)50 See Coats, at 652, Morric i’ Futmhn, 148 P2d 986, 987 (Okid

1944)(occupanq 1s regarded for the “use and benefit of the trueowner”)

51 See Coats, at 65252 See Kc&r, at 100853 BACKMAN, supra note 1, at 9 7 Ol[l]54 See OKLA STAT tit 60, s 333 (1991)55 Frrrmv u Pfde, 178 P.2d 106 (Okla 1947)56 OKLA STAT tit 12, 9 93(3) (1991)57 Hcrrox u Swarfs, 350 I’ 2d 314 (Okla 1960)58 See DKLA STAT ht. 12, § 93(l), 93(2) (1991)59 Ser OKLA STAT td 12, § 93(6), Umtcd Stnto t’x rrl Farmers Home

Ad,?~mr~tratmr 11 Hobbs, 921 P2d 338 (Okla 1996)60 See Farmers Home Admmstratum, 921 P2d at 343, Dearqq u Slate

ex rei Commlsstoners of the Land Ofice, 808 1’2d 661, 668 (Okla 1991),Knzwe ZI Sarkrys, 361 P2d 1082 (Okla 1961)

61 SPP Fadent D Kimball, 612 P2d 287, 292 (Okla Ct App 1979)62 See Krosnnco, 968 P2d at 35063 See Id64 SEE Fadem, 612 P2d at 29365 See Krosmrco, 968 P2d at 350 (also clhng Fadem v KmbalJ 612

P.2d 287 (Okla Cl App 1979))66 See Merrrtt Jndepmdent School Dz<t No 2 of Beckham County I’

Jonrs, 249 P2d 1007 (Okla 1952)67 See Soars u Far, 397 P2d 134,137 (Okla 1964)68 See Id. at 13969 See Mobbs v City of Lehtgh, 548 P.2d 1048, 1049 (Okla Ct App

1976)70 Scr Id71 See &publlshed Opnuon of the Oklahoma Court of Appeals,

DIV. No 4 Appeal No 91,673 (Sept. 28,1999)72. See Harr u City of Norman, 389 P2d 634 (Okla 1963)73 See Putnam u Oklahoma Ctty, 296 P2d 797 (Okla 1956)74 See Sears u. State ofOklahoma Department ofwddllfe Cormwattun,

549 P2d 1211, 1213 (Okla 1976)75 See Grand Lodge of Oklahoma, lndppmdcnt Order of Odd Fellows 11

Webb, 306 P2d 340,343 (Okla. 1956)76 See Brown u Mayfwld, 786 P2d 708, 712 (Okla Ct App 1989)77 SW Id78 See Wdlrs u H&y, 925 P2d 539 (Okla 1996)79 See Jrm u Nelson, 249 P.2d 107 (Okla 1952)80. See TrJford v Stettmund, 235 P2d 692 (Okla 1951)81 Telephone mterwew wth Carp Bastm, October 25, 200082 See OKLA STAT tit 16,5§ 71-85 (1991)83 See Mobbs I? City of Lehqh, 655 P.2d 547 (Okla 1982)

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