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Comment by schmichael | Hacker News Reader

What you're referencing is probably a "prescriptive easement" and is legal (depending on your jurisdiction).

If your jurisdiction does not have "adverse possession" or "prescriptive easement" laws, you can probably tear that fence down or do whatever else you want with it. (IANAL and please just talk to your neighbors first!)

None of this is related, either legally or in spirit, with the sentence you cited. The cited statement refers to an unlawful act, over time, attempting to override the law. In most (all in the US?) jurisdictions a law regarding prescriptive easements or adverse possession probably makes your neighbor's actions legal. The entire point of this ruling is that congress never passed a similar law to make this sort of action legal.

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> If your jurisdiction does not have "adverse possession" or "prescriptive easement" laws, you can probably tear that fence down or do whatever else you want with it.

My jurisdiction does, of course, which is why I mentioned it.

> None of this has anything, either legally or in spirit, with the sentence you cited

I disagree, strongly.

I acknowledge that the fence line is now legal, in the colloquial sense meaning "in compliance with the law".

Everyone acknowledges that the fence line was once illegal, in the same colloquial sense.

Yeah, you're right, the ruling in the linked article is different, and governs the creation or removal of actual laws. However, it's similar in spirit in that something that was forbidden, if done for long enough, becomes permitted. If you can't see the analogy, I recommend you just shrug and move on.

>I acknowledge that the fence line is now legal, in the colloquial sense meaning "in compliance with the law".

Excuse me? What on earth does legal mean other than specifically being "in compliance with the law"? There is nothing colloquial about it, that's quite literally the formal definition.

>However, it's similar in spirit in that something that was forbidden, if done for long enough, becomes permitted. If you can't see the analogy, I recommend you just shrug and move on.

This is not true at all. The whole basis for a prescriptive easement rests upon the fact that it wasn't forbidden. If you object to someone's use of your land, then their fence becomes illegal and is indeed forbidden. To acquire an easement, you need to prove that your use was not contentious, ie. specifically demonstrate that your usage did not contravene any prohibition.

> If you can't see the analogy, I recommend you just shrug and move on.

I recommend you take a moment to reflect on how obnoxious this is, regardless of if you were correct in the first place.

Most crimes have a statute of limitations. Why should moving a boundary illegally not have a similar limitation?

That is criminal law, and about persecution. This is civil law. So there is no statute of limitations.

Moreover, he isn't looking for retribution, but restitution. He just wants his land back.

> That is criminal law, and about persecution. This is civil law. So there is no statute of limitations.

“prosecution”, but, no, civil law has statutes of limitations, too, in fact crimes without statutes of limitations are more common than civil wrongs without them.

See, e.g., this discussion of California’s civil statutes of limitations: https://statelaws.findlaw.com/california-law/california-civi...

I agree with you on the legal aspects, but the mind-bending bit is that the neighbor's actions -- at the time -- were not legal (because no, it is not legal to build structures on someone else's property without their permission), but because it was left to sit that way for some period of time, the result of those actions -- a de facto redrawing of property lines -- has become the new legal status. Which, honestly, sounds completely bonkers to me.

Otherwise you could wake up and discover that a structure you built 30 years ago on land you thought was yours now isn't. The adverse possession law exists to prevent surprises like that.

Reasonable, but shouldn't the real owner of the property be entitled to some sort of compensation regardless? That becomes problematic if you don't have the means to retroactively buy the land from your neighbor, but it doesn't seem fair to just acquire it, free of charge.

I can understand this perspective, but that also means someone else's rights have been trampled over, even if long ago. What's needed is something that prevents this from even happening in the first place.

Not everything in life is perfect. The law isn't either, but it's reasonable to attempt to deal with imperfect situations.

As I understand it, there is a similar situation legally with regard to copyrights, trademarks, etc. If you don't enforce them, eventually, they are no longer considered valid. Note that IANAL and I haven't investigated this in depth.

I think the idea is that most people aren't computers processing laws as if they were code; most humans have to primarily go by what they see happening around them in order to decide what is ok. If they see lots of cars going down a road, eventually they assume that it is public property, even if they never check the public records to see if it is. Similarly with lots of other things.

But, crucially to the Supreme Court's majority decision, you have to have a law saying that this is so (for real estate or intellectual property or whatever), for it to be so, and Congress never did that.

True for trademarks since by definition it’s a claim on some unique usage of a word or mark. Not the case (anymore, as of 1976) for copyright, at least in the US.

The lone “Standard Oil” gas station in San Francisco is good example of Chevron holding onto a unique usage of that trademark.

https://www.atlasobscura.com/places/standard-oil-gas-station

EDIT: they have one each in 16 states, so not exactly “lone”

> because it was left to sit that way for some period of time, the result of those actions -- a de facto redrawing of property lines -- has become the new legal status

Yes, the point is there is a specific law that says this, and it's really not that unreasonable, since precise property boundaries are always ultimately conventional.

Property boundaries affect home value, though. The parent who brought this up bought a house with the understanding that he would have X square feet of land, but it turns out, due to this weird situation, he only has some Y (< X) square feet. Presumably he might have wanted to pay less for that.

I would go after the realtor. If they sold you a house with X sqft, and you actually get Y sqft, I would say the realtor is liable.

The realtor will blame the title insurance firm and will be out of the picture. The title insurance firm will claim they did nothing wrong, and that it is the landowner's actions (or inactions) that have caused the landowner's losses.

Which in this case, it is; the owner sounds particularly upset, but as he tells it the fence was put up shortly before he bought the property. He has sat there for decades without ever having measured it up. Adverse possession takes a long time to come good. All advice about the purchase of property is always to get it surveyed.

And the owner had a few remedies. The easiest is to quickly grant a revocable right to put a fence there. This makes the possession not adverse (there is no trespass). That makes it temporary.

And, the landowner might have passed away.

I understand the reason why someone might not trust the most local government (municipal, state, federal governments as appropriate) to manage the registry of landownership complete with dates, dimensions, notables features, and owners, but I find it really weird that problem of knowing exactly who owns what is effectively an orphan in the last resort.

There are statutes of limitations on crimes.

Sure, I'm not saying that it's reasonable to prosecute the neighbor for the prior act of building on someone else's land (though I'm not sure that's a crime; at worst I expect it'd be a form of trespassing, but would otherwise be a civil matter). I'm just noting the weirdness that the legal status of the property was changed through an initially illegal act.

But I guess on second thought maybe it's not that weird? Like if I buy stolen property from someone, and I have no idea that it's stolen, and the original owner comes along wanting it back, it's actually now legally mine, and I'm under no obligation to give it back.

But that's not exactly the same, because in this case the original owner has been harmed, but making the original owner whole would then harm me (an innocent bystander). In the case of the real property issue, "giving back" the land would only harm the person who "stole" it in the first place.

However! If the original "land thief" were to sell the property to someone else, then you're in the same situation. The new owner bought it in good faith, expecting the fenced-in area to truly belong to them, not knowing that the original property lines were drawn such that some of that property actually should belong to the neighbor. So then acknowledging the status quo means hurting the neighbor, but transferring the property back means hurting the new owner (an innocent bystander). At least in this case, the new owner could perhaps sue the old owner for misrepresenting the size of the land.

That's again not accurate at all. If you buy stolen property & the original owner makes a claim to it within the statute of limitations, that property is returned to the original owner.

Anyway, as many others have noted, the problem isn't that the statute of limitations hadn't expired. What was actually happening was that the government was regularly breaking the current treaty that was in force. The ruling was that the government has to follow the law or change it but it can't just apply it however it wants.

I think it's interesting that a debate about the impact of adverse possession upon the original land owner has resulted from a SCOTUS decision about a Treaty between the United States and an Indian nation.

On what basis was the rest of Oklahoma not "adversely possessed"?

Reservations aren't property of the tribe or nation, they are areas of federal jurisdiction under a Constitutional reserved power within which the tribe and federal government has certain jurisdictional rights concerning members of the tribe, and where the state is excluded from certain jurisdictional rights it would otherwise have over territory within the state.

I understand statutes of limitations are about blocking prosecution of past infringement, not granting a legal right to continuous infringement.

If the statute of limitations for conversion has expired, you will no longer be able to recover either the chattel or its value from the converter. The analogy to adverse possession or easement by prescription in real property should be fairly obvious.

> What you're referencing is probably a "prescriptive easement" and is legal

No, what he is describing is adverse possession, which is different from prescriptive easement; adverse possession converts ownership, prescriptive easement provides an easement (usage rights without ownership.)

> and is legal (depending on your jurisdiction).

No, adverse possession and prescriptive easement are both conditioned on open and notorious trespass, which is an illegal action.

> In most (all in the US?) jurisdictions a law regarding prescriptive easements or adverse possession probably makes your neighbor's actions legal.

After enough time, the neighbor acquired the title to the land through adverse possession and the fence became legal. Before that, the fence was illegal as it was built on property that the neighbor did not own.

IANAL, and other disclaimers.

Prescriptive easement is not intended to apply to physical encroachment. It's intended to apply to right of way and ingress/egress issues. Otherwise, it would be an end-run around having to pay for the property.

I don't think that principle would apply in GP's case.

Adverse possession, however, may apply.

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