Adverse possession

Adverse \Ad"verse\, a. [OE. advers, OF. avers, advers, fr. L.
   adversus, p. p. advertere to turn to. See {Advert}.]
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   1. Acting against, or in a contrary direction; opposed;
      contrary; opposite; conflicting; as, adverse winds; an
      adverse party; a spirit adverse to distinctions of caste.
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   2. Opposite. "Calpe's adverse height." --Byron.
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   3. In hostile opposition to; unfavorable; unpropitious;
      contrary to one's wishes; unfortunate; calamitous;
      afflictive; hurtful; as, adverse fates, adverse
      circumstances, things adverse.
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            Happy were it for us all if we bore prosperity as
            well and wisely as we endure an adverse fortune.
                                                  --Southey.
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   {Adverse possession} (Law), a possession of real property
      avowedly contrary to some claim of title in another
      person. --Abbott.
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   Syn: Averse; reluctant; unwilling. See {Averse}.
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ADVERSE POSSESSION, title to lands. The enjoyment of land, or such estate as
lies in grant, under such circumstances as indicate that such enjoyment has
been commenced and continued, under an assertion or color of right on the
part of the possessor. 3 East, R. 394; 1 Pick. Rep. 466; 1 Dall. R. 67; 2
Serg. & Rawle, 527; 10 Watts R, 289; 8 Con R. 440; 3 Penn. 132; 2 Aik. 364;
2 Watts, 23; 9, John. 174; 18 John. 40, 355; 5 Pet. 402; 4 Bibb, 550.
Actual possession is a pedis possessio which can be only of ground enclosed,
and only such possession can a wrongdoer have. He can have no constructive
possession. 7 Serg. & R. 192; 3 Id. 517; 2 Wash. C. Rep. 478, 479.
     2. When the possession or enjoyment has been adverse for twenty years,
of which the jury are to judge from the circumstances the law raises the
presumption of a grant. Ang. on Wat. Courses, 85, et seq. But this
presumption arises only when the use or occupation would otherwise have been
unlawful. 3 Greenl. R. 120; 6 Binn. R. 416; 6 Cowen, R. 617, 677; Cowen, R.
589; 4 S. & R. 456. See 2 Smith's Lead. Cas. 307-416.
     3. There are four general rules by which it may be ascertained that
possession is not adverse; these will be separately considered.
     4.-1. When both parties claim under the same title; as, if a man
seised of certain land in fee, have issue two sons and die seised, and one
of the sons enter by abatement into the land, the statute, of limitations
will not operate against the other son; for when the abator entered into the
land of his father, before entry made by his brother, the law intends that
he entered claiming as heir to his father, by which title the other son also
claims. Co. Litt s. 396.
     5.-2. When the possession of the one party is consistent with the
title of the other; as, where, the rents of a trust state were received by a
cestui que trust for more than twenty years after the creation of the trust,
without any interference, of the trustee, such possession being consistent
with and secured to the cestui que trust by the terms of the deed, the
receipt was held not to be adverse to the title of the trustee. 8 East. 248.
     6.-3. When, in contemplation of law, the claimant has never been out
of possession; as, where Paul devised lands to John and his heirs, and died,
and John died, and afterwards the heirs of John and a stranger entered, and
took the profits for twenty years; upon ejectment brought by the devisee of
the heir of John against the stranger, it was held that the perception of
the rents and profits by the stranger was not adverse to the devisee's
title; for when two men are in possession, the law adjudges it to be the
possession of him who has the right. Lord Raym. 329.
     7.-4. When the occupier has acknowledged the claimant's titles; as,
if a lease be granted for a term, and, after paying the rent for the land
during such term, the tenant hold for twenty years without paying rent, his
possession will not be adverse. See Bos. & P. 542; 8 B. & Cr. 717; 2 Bouv.
Inst. n. 2193-94, 2351.