ADVERSE POSSESSION a. Elements i. Actual and exclusive possession for the statutory period

1. Courts say actual can depend on customary uses for that land a. McCarty v Sheets---using the garage was enough to give AP over the portion covered by the garage, but raking leaves was insufficient use to give them AP ownership of the land next to the garage; court did however grant prescriptive easement for the garage eaves. b. Ewing---leasing gravel rights was enough for actual and exclusive

2. Ordinarily, actual possession only over the portions of the tract that you occupy. But if you have possession under color of title, then you can get AP of the entire tract, even the portions you aren't occupying, if you meet all the other elements. ii. Open and Notorious

1. Can be of such character under the circumstances as would indicate to a reasonable person that someone else might be claiming the property.

2. The point of open and notorious is to give notice

3. General rule is that it just needs to be open and notorious that the AP is actually using it, doesn't need to be O&N that it's not his land. Some exceptions:

4. In Manillo v Gorski, court says that no presumption of knowledge arises from a minor (15 in.) encroachment along a common boundary. Manilo knows that Gorski has the stoop, he just doesn't know that it's on his land. In such a case, only where the true owner has actual knowledge thereof may it be deemed O & N.

5. Marengo Cave---court said that the fact that Ross knew that the cave existed did not show that he knew it existed under his land, so it wasn't open, notorious or exclusive. Court gives Ross some rights to the portion of the cave under his land. Cave co. had operated the cave for 25 years before Ross bought his land and 21 years after. FU thinks the court got this wrong, but wanted to stick it to the cave company for acting in bad faith and denying Ross' earlier request to get a survey on the land. iii. Continuous and uninterrupted during the whole period

1. Kunto---continuous can be just summer months if its common in that community to just use the homes during the summer. To meet continuous, AP must use the property as would the true owner under the circumstances

2. 13th St. squatters. Court said the squatters have no privity---they were no legal entity.

Buy the full version of these notes or essay plans and more in our Property Outlines.