         |
|
|
|
||||||||||
|
||||||||||
|
||||||||||
|
||||||||||
REAL PROPERTY INVOLUNTARY LOSS OF REAL PROPERTY I. AUTHORITY OF THE STATE.
When a title is obtained by the exercise of the state's power of eminent domain to take land for public purposes, the, former owner's title is extinguished and a new one is created in the person or corporation or the state exercising the power. The subject of the taking of land under the power of eminent domain is treated in Constitutional Law.
When land is sold under public authority for. non-payment of taxes, the character of the resulting title is like that acquired under eminent domain proceedings. Little general information can be given concerning the subject of tax titles. Its rules and regulations are fully dealt with in elaborate statutory provisions in every state. In some the tax title w hen acquired, is, at least after the period of redemption, a very dangerous adverse title which can only be upset with the greatest difficulty, if at all. In other jurisdictions it is well known that every tax deed can be upset by a good lawyer and a determined client who is prepared to pay the money necessary to fight the tax-burden through to the highest court. In such jurisdictions the tax title is always noted as a serious objection to the title to the land and some settlement with the tax-buyer, or a court proceeding to remove the tax deeds as clouds, is required before the title is regarded as merchantable. II. STATUTE OF LiMITATIONS AND ADVERSE POSSESSION.
The statutes of limitation in many states provide that actions for the recovery of real estate must be brought within twenty years from the time the action first accrued. Others reduce the time to fifteen, ten, or even less. The precise time is a matter of great diversity in different jurisdictions. Many states have other special statutes which protect the possession of those who have color of title in good faith, and have been in possession and paid taxes for a specified number of years, for instance, seven. In addition it is sometimes provided that rights in land may be acquired by those who have had color of title in good faith and paid all the taxes on lands for a period of years, say seven, during all of which time said lands have remained vacant and unoccupied, and then have taken possession. The requirement that there must be color of title in good faith is satisfied by any deed, good in form, such as a tax deed. Color of title "in good faith" is self-explanatory.
The most widely known form of statute of limitation in respect to actions for the possession of real estate is that which bars a true owner's right of action when he has failed to assert it for a specified number of years. SEE ADVERSE POSSESSION. In this form it will be observed that the act merely bars the true owner's right of action. Of course, when the true owner is attempting to recover the possession from the adverse holder, the defendant need rely only upon the literal language of the statute which bars the plaintiff's remedy. Suppose, however, the adverse holder voluntarily goes out of possession and the owner who has been dispossessed for over twenty years takes possession again. If the statute only bars the true, owner's remedy, that bar has been waived, and the adverse holder could not now sue to recover possession from the true owner in possession. If, however, the adverse holder has acquired a good title by virtue of the adverse holding for the prescribed time, then the true owner has lost his title; and the adverse holder for twenty years has gained a new and original title under the statute, and can recover possession from any one. This is the result which the courts reach even upon statutes which purport only to bar the owner's remedy. It is now generally assumed that all statutes of limitation with respect to real estate operate to raise a new and original title in the adverse holder who has held adversely for a sufficient length of time. SEE ADVERSE POSSESSION. ORS 105.620, et seq.
The important question to determine frequently is, when does the statute begin to run-or, as it is often put, when was the true owner disseised, or when did the adverse possession begin? In the ordinary case where the true owner entitled to possession in fee is dispossessed at a given time, and the adverse holder takes possession by a trespass at that time, there is not so much difficulty. It is all a question of when the adverse holder becomes a hostile stranger to the owner's possession.
The difficult problem arises when the one claiming to be an adverse holder has originally come into possession by the act and with the consent of the true owner. Men does the possession of such a one become adverse? Suppose, for instance, a tenant in possession repudiates the. tenancy and declares that he holds the title in fee and refuses to pay rent or acknowledge the landlord. It is clear that such an oral disclaimer in this country generally would be a ground of forfeiture of the tenancy, but it should not be regarded as terminating the tenancy automatically and at once-being no more than a ground for forfeiture. There is no termination of the tenancy till the landlord elects to forfeit. Until then the tenant is still a tenant, and cannot be an adverse holder. Suppose that a tenant for the life of another holds over after the life estate terminates. It is submitted that the possession of the former life tenant at once becomes adverse. But here again it cannot be said that the authorities are precisely agreed. If the tenancy were.,@ tenancy for years, then, upon holding over with the assent of the landlord, a -new tenancy arises for a new period-usually for a year-and thereafter a tenancy from year to year may arise. The holding over, therefore, by a tenant for years would not be an adverse possession, unless at the same time the landlord refused to recognize him as a tenant.
Where a licensee holds possession, there is no disseisin or adverse possession on his part, even after the license has terminated by operation of law by the conveyance of the land or the death of the licensor, unless the occupant ceases to claim under the license and begins to claim in his own right. Suppose one enters under a parol conveyance or gift of the fee, which of course is ineffective to pass the title, is his possession adverse at once? Why may it not be urged that he is in possession by the license of the owner, so that his possession is not adverse? The answer is, because such is not the fact. The donee enters as the owner in fee, and holds claiming a fee and not under any license. III. DETERMINING ADVERSENESS OF POSSESSION
There was formerly an interesting division of judicial opinion in regard to whether a positive wrongful intent to deprive another was necessary to an adverse possession. This arose in regard to the common case where a neighbor built or placed his fence over the line by mistake, thinking he was within the true line of his own property. Clearly in such a case the person in possession, although by mistake, is actually trespassing and is liable for his trespass. Furthermore, he is claiming the land actually occupied over the line which does not belong to him as his own. If any one were to ask him where his line was and what actual physical space he was claiming as his own, he would point to the edge of his house or to the fence as it actually stood. He would be claiming up to the point to which his actual occupation ran in the lands even though his claim was founded upon a mistake. It is now clear to most courts that such possession by a -neighbor occupying over the line, is an adverse possession (5). Some courts which formerly thought it was not have changed their minds (6). But some respectable jurisdictions still maintain that such a possession is not adverse (7). They protect the adverse holder with the wrongful intent; but the man who acts on a mistaken idea of his rights and perhaps makes expensive improvements relying thereon, is, by reason of his pure motives, penalized.
Suppose A, having no title to Blackacre, devises it to B for life and then to 0 in fee. B enters and occupies the premises adversely for twenty years. B then obtains, as between himself and C, only a life estate, and upon B Is death C becomes entitled in f ee. The reason for this is that, as against the true owner, B can claim to be entitled to possession and an restate in fee simple, if you will; but as between B and C, B cannot deny the terms of the instrument under which he took possession, and, being by that instrument a life tenant only as respects C, cannot maintain any adverse possession as against C nor deny that 0 is next entitled (8).
When a tenant in possession for life or years is disseised, when does the adverse possession begin against the one next entitled to possession Of course, the adverse possession against the one next entitled to possession will begin when the tenancy expires in the ordinary course-that is, in case it is a life tenancy, at the death of the life tenant. Suppose, however, that the tenant in possession is a life tenant, who is disseised and remains out of possession twenty years, so that all his right to possession is barred. The adverse holder then obtains the fee as against the life tenant. It would seem logically proper to say that, when the life tenant was barred, adverse possession would begin to run against the one entitled after the life tenant. Very respectable courts, however, can be found which refuse so to hold, and assert, instead, that, while as soon as the life tenant is barred the holder of the future interest can elect to enter and claim possession, yet in the absence of such a move on his part no adverse possession begins against him till the life tenant actually dies. Hence, where B has a life estate and C a fee afterwards, D may hold adversely for sixty years, and, unless B dies more than
When the true owner finds that his land has been in the possession of another adversely, he has two courses open to him: (1) To bring suit for possession; or (2) to interrupt the continuity of the adverse possession by making an entry upon it. Whether an entry upon the adverse possession has been accomplished is a question of fact. No rule can be given for precisely what amounts to an entry. It is necessary that the true owner or his agent actually go upon the land physically and invade the possession of the one in adverse possession. Surveyors who find a line improperly run and a fence placed to the disadvantage of their clients sometimes begin slashing up the shrubbery and cutting small trees and undergrowth upon what they deem the land belonging to their client. The rational ground for such seeming vandalism is that their client's rights may be at once protected by the making of a distinct entry upon the possession of the neighbor in adverse possession. Such in fact is its operation. In one case the running of the twenty year statute of limitations was prevented by such action of a surveyor by a margin of only fifteen days.
The rule which defines and makes equal to adverse possession a constructive or fictitious adverse possession is peculiar to this country. It had its origin in the early part of the last century, when the amount of land to be taken up and improved in this country must have seemed to be without limit, and when it was as desirable that titles to large tracts which it was difficult for the claimant to have actual possession of should be quieted, as it was in England in the case of tracts of which the actual possession might at all times be had. To meet this end the rule was put forth by the courts that a constructive adverse possession was as good for the purpose of acquiring title under the statute of limitations as an actual adverse possession. Constructive possession was held to exist when there was actual occupation of part of a tract, with a paper title to the whole. This paper title must have been a deed or instrument of conveyance, at least perfect in form for the transfer of title to land (11). Furthermore, the actual occupation of part, with this paper title to the whole, could only be constructive possession of so much as might be deemed "a reasonable appendage to the part actually occupied." What was such reasonable appendage must depend upon the state of the country and character of the improvements and settlement. One might well believe that "a reasonable appendage" would be a very different thing in New York state today from what it was a century ago, or a different thing in Massachusetts and in Texas today.
Another requirement of a good constructive possession was that the actual occupation of the land must be such as to give the real owner notice that his land was being occupied adversely. Thus if there is paper title to a house-lot and also to a lot across the street, and there is actual occupation of the house-lot only, there can hardly be any constructive possession of the lot across the street. Suppose there is a paper title to a house-lot and to an adjoining lot separated by a fence, and suppose there is actual occupation of the house-lot only, can there be a constructive possession of the lot adjoining? This question must be determined by the application of the rule above mentioned to the particular facts in each case. Courts have apparently obtained different results in respect,to this problem, but it is very difficult to say that two cases are exactly alike with reference to the fact whether the actual occupation of the house-lot was such as to give the true owner notice that the adjoining lot was claimed with it.
In case a good constructive possession is made out, it should be observed: (1) that of two conflicting adverse possessions the prior prevails, and, (2) that while there is a difference of judicial opinion as to whether the terms of successive adverse holders can be tacked together to make up the required period of adverse possession; yet, in the case of constructive adverse possession, it is invariably the rule that to tack successive constructive adverse possessions by different holders in order to make the statutory period there must be a chain of title valid in form between the successive constructive adverse holders.
The usual twenty year statute of limitations provides for the disabilities on the part of the true owner of minority, marriage, insanity, and absence from the country. Where the true owner suffers from any one or more of these disabilities the time within which the true owner may sue for possession is ordinarily extended to ten years after the removal of the disability. Observe, however, that the regular period of limitation let us say twenty years-does not cease to run in the case of the existence of disabilities. The statute merely operates to extend the time within which the true owner may bring the action. It should be observed also that the only disabilities which can be counted are those which exist at the time when the adverse possession begins (14). The true owner is not allowed to tack disabilities accruing later: that is to say, if, at the time the adverse possession begins, the true owner is an infant, and afterwards before coming of age marries, the disability arising from the marriage cannot be added to the disability of infancy, and the action brought for the recovery of possession ten years after the disability of marriage is terminated. The infant will be allowed ten years only from the time of the termination of the disability of infancy. The one under a disability is always entitled to at least twenty years from the time the adverse possession begins in which to bring an action for possession. The allowance of ten years from the time the disability ceases will, therefore, only be taken advantage of when it results in requiring a period of adverse possession longer than twenty years. Thus, if at the time the adverse possession begins the true owner is an infant of the age of thirteen years, ten years from the time the infant came of age would only result in eighteen years of adverse possession. In such a case, therefore, the true owner can claim the full twenty years from the time adverse possession begins. If at the time the adverse possession begins the true owner is an infant under the age of eleven years, he will naturally claim the full period of ten years from the time the disability of infancy is removed.
It frequently happens that one adverse holder does not have possession for the full period required by the statute, but that the adverse possession of two or three together is necessary to make up the statutory period. The questions then arise: (11) When may such adverse possessions be tacked together to bar the true owner? and, (2) what is the effect of the successive adverse holdings upon the title as between the successive adverse holders?
It is clear that where A disseises the true owner and dies and A's heir or devisee continues the adverse possession, such heir or devisee can tack his adverse possession to that of his ancestor for the purpose of defeating the action of the true owner. When A disseises the true owner and conveys to B by a conveyance sufficient in form to pass title to real estate, and B continues the adverse possession of A, B can tack his adverse possession to that of A in order to bar the action of the true owner. If, however, the transfer of possession from A to B is by word of mouth only and not by any instrument of conveyance sufficient to pass title to real estate, many jurisdictions refuse to allow B to tack even for the purpose of barring the true owner. Perhaps an equal number of jurisdictions will be found holding the contrary (15). These, it is submitted, have adopted the result based upon the sounder reasoning, for, when the question is whether the true owner shall be barred of his action, the material fact is how long has he been out of possession-how long has he failed to bring the suit for possession which he had a right to assert. Now suppose that A disseises the true owner and is in turn disseised by B, who continues without a break the adverse possession, can B tack his adverse possession to that of A? The English cases have adopted the view that B can tack to bar the true owner's remedy (16). This it is submitted is sound, upon the same reasoning as is applicable where A transfers to B by word of mouth only. It cannot, however, be asserted with confidence that any American jurisdictions follow the English rule.
In American jurisdictions which allow tacking to bar the true owner where A disseises the latter and then conveys orally to B, a very nice question of fact sometimes arises as to whether there has been a transfer of possession from A to B by word of mouth in the following case: A, being the owner of lot one, occupies it together with five feet of lot two, which he does not own. The fence includes all of lot one and the five feet of lot two. The possession of the five feet of lot two is adverse. A then conveys lot one by, deed to B, and B takes possession of five feet of lot two according to the fence. Is there any parol transfer by A to B of the five feet of lot two I It is believed that in the typical case put there is. A actually hands over all that is embraced within his fences and that includes few feet of lot two. The fact that in his deed he only describes lot one, and perhaps did not know that he was in possession of more than lot one, does not impugn the fact that A did physically and intentionally hand over to B all that was within his fence line (17). At least one respectable court, however, has refused so to hold (18). § 160. Tacking to obtain title. Now suppose the question is, what is the state of the title between the successive holders after the true owner is barred? Take for instance, the case where A disseises the true owner for five years, and is in turn disseised by B, who holds possession for ten-years, and is in turn disseised by C, who holds possession for six years. Assuming that the true owner is barred according to the view of the English cases, who has the title as between A, B, and C? Surely not C, for he has only occupied six years, and, since he disseissed B, B can sue him for possession. Surely not B, for he has not occupied twenty years, and, since he disseised A, A can sue him for possession. A Is possession, however, can be assailed by no one. Hence, if any one does, A must obtain the legal title and can recover from B or 0. The English cases so hold. Now suppose A disseises the true owner, occupies for five years, then conveys to B by parol, and B occupies for sixteen years. The true owner is barred under the rule recognized in some American jurisdictions. Does A or B obtain the title? Logically why does not A obtain the title as between A and B? Can A recover from B at any time until the statute of limitations has run in favor of B and against A? A's transfer by parol is invalid as a conveyance of land, and A can elect to treat B as a trespasser at any time. Hence, A is the only one with an unassailable right to possession, and so must have title. It is not believed that this problem has been settled by any jurisdiction in this country, though lawyers and laymen alike are apt to assume that B will obtain title. Of course, in all cases where A disseises the true owner and then transfers to B by a conveyance valid in form to pass title, as by devise or deed, B, when the true owner is barred, will obtain the title as against A. SEE ORS 105.620, et seq. IV. PRESCRIPTION.
The statute of limitations provides only for the acquisition of title by reason of adverse possession for a given length of time. It does not in the usual case provide for the acquisition of mere rights in the land of another by adverse user for a particular period--say twenty years. Yet a mode of acquiring easements or rights in the land of another by lapse of time is almost as desirable from the point of view of public policy as the acquisition of title by adverse possession. The courts have managed, therefore, to find ways-in their earlier stages full of legal fictions-of making a rule by which easements and rights in the lands of another may be acquired by reason of long continued user, very much as title is acquired by virtue of the statute of limitations. This method of acquiring rights in the lands of another is called "prescription." § 162. Usual statement of rule of prescription. Most courts are now committed to the proposition that an easement may be acquired by prescription when there has been a user and enjoyment of the right in question in the land of another, which has been continuous, uninterrupted, open and obvious, and adverse, for the period required for the acquisition of title to real estate by adverse possession under the statute of limitations in force in the Z particular jurisdiction. The difficulties which arise concern the determination of when a given user is (1) "continuous)" (2) "uninterrupted," (3) "open and obvious" and (4) "adverse."
A series of disconnected trespasses will not do. Now where the user is of a right of way which is necessarily -not used continuously, as that word is ordinarily employed, how can the user be continuous and not a mere series of disconnected trespasses? The answer to this is simple. If the acts of user are in fact related one to another in a series-if they are similar in character and object, occur with a certain periodical regularity in connection with the same estate, and are appropriate to an actual easement-then they are related and make a continuous user within the proper meaning of "continuous," though the specific acts occur at very considerable intervals of time. Thus, it has been held that a user only once a year of a way to a woodland lot for twenty years was a continuous user.
The adverse user is interrupted when suit is brought questioning the right, or 'when there has be-en a physical interference with the exercise of the user. Afere, oral declarations of protest, however, are not, it is believed, generally sufficient to make an interruption (21), though it is occasionally held that they are.
Of course, the user must be open and obvious as opposed to secret. How far, however, must the servient owner who suffers the adverse user of his land have actual notice of the user? When the servient owner is in possession of the servient estate at the time the adverse user begins, it seems that it is not necessary to bring home to him actual knowledge. It is enough if the user was open and obvious so that lie had reasonable means of knowledge. If, however, the servient owner was out of possession and his tenant was actually in possession at the time the adverse user began, the time during which the tenant's possession continues cannot count as an adverse user against the landlord unless he has actual notice of the user. But if, on the termination of the tenancy, the landlord comes into possession long enough to have reasonable means of knowledge of the user, then that will take the place of actual notice; and a prescriptive right may be acquired against him, though he had no actual knowledge, and though he shortly afterwards let to another tenant who holds for more than twenty years.
The user is adverse when it results in a trespass giving rise to a cause of action on the part of the servient owner. The use is adverse entirely with reference to the way it affects the servient owner. The clearest case, therefore, where the use is not adverse, is where it is under some express license or permit of the servient owner. In a number of causes therefore the prescription failed because the user was actually and expressly permitted by the servient owner. The special difficulty ir. determining what user is adverse arises in attempting, Lo ascertain how far the court will find, by circumstantial evidence surrounding the user, a user by express permission of the servient owner. It is believed that a use, expressed by interpretation from all the evidence, can be found only when the following two elements concur; (a) where there is an acquiescence in the user by the dominant owner; and (b) where the user by the dominant owner is in conscious subordination to the title of the servient owner. Clearly the mere acquiescence of the servient owner alone, however good-natured and neighborly, cannot prevent an adverse user, or make out a user by permission; for, if it did, then non-acquiescence would mean interruption and acquiescence would mean license, and, between the two, rights by prescription could not be acquired at all. If, however, there be added to acquiescence by the servient owner a conscious submission to the servient owner's title by the dominant owner, there is a fair and proper ground for finding a license by interpretation from the surrounding circumstances, and the user may, in the language of the cases, fairly be called permissive.
No attempt will be made here to generalize as to what evidence will show an acquiescence of the servient owner together with the conscious subordination of the dominant owner, so that an express license by interpretation from circumstantial evidence may be found. It is sufficient to say that courts have reached all manner of results in cases which appear on the surface somewhat similar. Courts have displayed various attitudes in handling the evidence-some appearing to do all that they could to prevent the acquisition of the easement and going to great lengths in finding a permissive user and others apparently tending to support the acquisition of the easement by refusing to find a permissive user unless it actually and clearly existed. In some instances a rule of law has sprung up which declares that a fictitious permission exists under certain circumstances.
It is apparent that the whole doctrine that a license may be found by interpretation from the surrounding circumstances is subject to great abuse. In fact, the cases where a permissive use was found in this manner strongly suggest a soft spot in the doctrine of prescription where the court relieves against hard individual cases in its discretion. It is very apparent that in many cases where the court, upon no evidence at all, calls the user permissive, it is, under the guise of a sound rule, simply doing what it regards as justice in a particular case where the servient owner allowed the user good-naturedly as a neighborly act, and the dominant owner knew he had no actual right.
Presumably all sorts of rights of user of the land of another-such as most commonly the easement of a right of way-may be acquired by prescription. Some particular easements cannot be acquired by prescription. For instance, in practically all jurisdictions of the United States, no, easement of light can be acquired by prescription. This is in reality in accordance with principle, for it is impossible that there should be any adverse user by one claiming an easement of light in the land of his neighbor. Thus, suppose A opened windows in the wall of his house overlooking B's vacant land adjoining. How can it be said that A's windows are an adverse user of B's land? Can B sue A for looking out over his land? Certainly not. Does B have to build a blank wall to prevent A from overlooking his land? The thing is absurd. The same is true of the right of adjacent support from B's land. Suppose the downward and side thrust resulting from A Is building is met by the pressure of B's solid vacant lot adjoining. How can it be that this is an adverse use of B's land? Can B sue A because of the existence of the thrust? Certainly not. Does B have to dig his land out so as to assert his right not to have this thrust against his land? Certainly not. The same is true of the claim to a, right to have the free and unobstructed flow of a current of air across B's land to A's windmill. A can obtain no right to such an unobstructed flow by long user, because such user cannot be adverse. It is a purely historical accident that the English courts became committed to the rule that the right to light and air (but not to a free current of air to run a windmill) and to adjacent support, could be acquired by prescription. Sound policy as well as logical reasoning upon principle has saved the courts of this country from becoming committed in a general way to any similar position (26).
The analogy to the rule laid down by the statute of limitations in regard to disabilities is strictly followed by some courts. Only disabilities existing at the time the adverse user begins can be counted. As, however, there is no provision like that of the statute of limitations for extending the time within which suit may be brought for ten years from the time the disability is terminated, the courts can only say that where a right is attempted to be acquired by prescription, there must be the full period of user after the disability ceases. Other courts have allowed the deduction of all periods of disability which occur during the period of adverse user. This makes it necessary that there should be twenty years adverse user exclusive of disabilities. When, after one disability, a period of non-disability less than twenty years intervenes and then another disability starts up, what shall be done? Must there be a continuous period of twenty years adverse, user without disability, or may the twenty year period of adverse user be made up from snatches of user occurring between disabilities The answer to this question, as a matter of policy and logic, depends upon considerations that cannot be discussed in the space here at command.
It is believed that the rules respecting tacking of adverse possessions in applying the statute of limitations would obtain in respect to tacking adverse users so as to make up the period of prescription usually the easement sought to be acquired is known as an easement appurtenant. That is, it is a right over the land of a servient owner in favor of a particular dominant property. Whenever the dominant property is validly transferred and the transferee continues the adverse user, of course his adverse user could be tacked to that of his predecessor in the title of the dominant estate. Whether one who receives the dominant estate by a transfer by word of mouth only, and continues the adverse user, can tack his adverse user to that of his predecessor, must depend upon whether it is recognized as law in a particular jurisdiction that where A disseises the true owner and conveys by word of mouth only to B and B continues the adverse possession, B can tack his adverse possession to that ef A.
A person may acquire a permanent right of way over another's land by passing over that land to his or her own land for a period of time fixed by law. This right of way cannot be acquired against a minor or against anyone who is incapable of defending his possessions. A person attempting to establish such a right of way can be stopped by appropriate legal action.
Sometimes a person sells a part of his or her farm that is not located on the road. The law allows the purchaser the right to enter and leave the premises, and such a right is called a way of necessity. The buyer must exercise reasonable care in selecting the road to the main road, and this road ultimately becomes part of the title to the property.
The law prescribes restrictions on the use of a right of way or a way of necessity. Thus the purchaser of the farm away from the road could dot subdivide the farm and transfer his right of way to others without permission of the real owner of the way. However, more than one person can claim a right of way. A tenant can never acquire a right of way beyond the duration of his lease.
The owner of a building has no action against one who cuts off his light, air, or view by erecting a building on adjacent land, unless the right has been expressly acquired. The right to light, air, and unobstructed view. NOTE THE RIGHTS TO LIGHT, VIEW, ETC. ARE SOMETIMES COVERED BY COVENANTS, AND COMMUNITY BUILDING OR ZONING CODE.
A person has the right to the lateral support of his land. If, for example, a neighbor excavates in an unreasonable manner and a building consequently falls down, the owner has an action against the neighbor and any excavator hired by him.
The water that runs through a person's land may legally be held back for a short time to furnish water power, or it may be used for any other reasonable purpose. Neither a person nor a municipality may dump impurities or sewage into a stream, making the water unfit for use downstream. As a general rule ditches or obstructions may not be dug either to hinder or to hasten the flow of water from one person's land to another in other than the natural way. A riparian owner has the right to cut and sell the ice that forms over the portion of the bed of the stream that he owns, provided he does not interfere with the rights of other owners. A person digging a well cannot be held for cutting off his neighbor's water supply, unless it can be proved that he acted maliciously. V. ACCRETIONS.
Accretions are the imperceptible increase in land where it borders upon the sea, a lake, or a river. Where that part of the earth's surface which is covered with water is owned by the state, or by some person other than the owner of the land bordering upon the water, the question naturally arises who becomes the owner of these accretions-the owner of the land covered with water, or the owner of the riparian property?
It is now clear that, as between different private individuals, and as between the private individual and the state, the accretions belong to the riparian owner. The reason for this now given is one of public policy. The right of access for the riparian proprietor to the water is of great value to him. It is an essential part of the value of his land, whether for commercial purposes or mere aesthetic enjoyment. The proprietorship of an infinitesimal width of imperceptible accretions which form upon the water's edge at a given time is of no practical value to the one who owns the title to the land under the water. To let him have the title to such accretions would be to begin the process of depriving the riparian owner of a great advantage, and confer no corresponding benefit on 224 anybody else. Hence, the sensible rule that the accretions go to the riparian proprietor. There is perhaps still a slight question as to whether the accretions go to the riparian owner when the actual boundary between the land and the water is marked with fixed monuments, or otherwise definitely known. But sound opinion seems to be against making any exception even in such a case.
In some places the question becomes acute as to what rule shall be adopted where the accretions are formed by artificial structures. There is a story of the crafty riparian proprietor who, by the protection of his bank at one point, managed to cause the stream to eat away the land of his neighbor opposite and then deposit that land in the shape of imperceptible accretions upon the crafty one's meadow below. The direct intent to take away the opposite riparian owner's land and add it to his own may be well concealed in the ostensible purpose of protecting the crafty one @s own bank. But suppose the intent be clearly proved to deprive the neighbor, should the crafty one lose the land added to his meadow below and thereby lose his riparian frontage? It is submitted that he should not. Admitting that the crafty one has done wrong in damaging his neighbor's land, the law seeks only to compensate the one injured for the damage which he has suffered, and that damage is to be estimated in money damages. To give the injured party a small or large strip of land, as the ease may be, between the wrongdoer's land and the river lower down would be a very crude way of measuring damages. It would be also an extremely unjust way of doing it, for in some cases it might be wholly inadequate and in others grossly excessive. The injured neighbor should sue the crafty one for damages for cause. ing the stream to wash away his land and receive compensation for the damage done-no more and no less.
On the shore of a lake, where a great city and its suburbs have grown up and land has become very valuable, there is a great temptation on the part of the riparian proprietor to Put out a breakwater for the ostensible purpose of protecting his beach, but in reality to build up a little more land by accretions. Again let us suppose that the riparian proprietor's intent to cause the accretions by artificial structures jutting out into the lake is clear. Let us assume also, what would be the probable fact, that the state owns the bed of the lake. Can the state then sue the riparian proprietor in ejectment for the made land? It is true the riparian proprietor acted illegally when he put out the breakwater, no matter bow innocent his motive in so doing may have been. It is true that his motive 'was improper. It is true that the state has suffered no pecuniary damage, so that none can be recovered. But the state, if it desired to move in the matter, could have required the removal of the piers from the beginning, and no statute of limitations runs against the state. The state, therefore, was not without remedy. But to take away the riparian proprietor's access to the water, because of his wrongdoing, and to insert between him and the lake a small and perhaps growing strip of land owned by another, who can make in many cases no use of it except to annoy the former riparian proprietor, is retribution out of all proportion to the wrong done. The views just expressed are not, as far as the writer knows, sustained by authority. Neither has there been any such contradiction of their soundness as would make their appearance here improper. Finally, it should be observed that the views above expressed have no application at all to the case of artificial filling in, and by this means making land where the fee of the land covered by the water is in the state or in another individual. In such a case the made land belongs to the individual or the state owning the land beneath the water.
So far as there are any mechanical rules on this subject, two may be singled out for mention. One rule is that each proprietor owns upon the new shore line in the same proposition that he owned upon the old shore line. According to this rule the old shore line should be measured and the respective proportions of ownership of the riparian owners determined. Then the new shore line should be measured and the same proportions laid off upon it. Then lines should be drawn from the termination of the division lines upon the old shore line to the points upon the new shore line which represent its division. The other rule is that you shall first find the middle thread of the stream as it exists after the accretions have been formed. Then extend the old boundary lines perpendicular to it (2). In favor of the latter rule it may be said that it takes account of the fact, in very many cases true, that the riparian proprietors own the bed of the stream to the center, while the former rule ignores that fact. In favor of the former rule, however, it may be said that it can be applied by the riparian proprietors themselves upon the bank of the stream, while the division of the accretions by the latter rule will require the expert services of a surveyor. Only a consideration of the condition of a particular community can determine whether the greatest good to the greatest number will follow from the adoption of the first or the second rule.
|
|
|||||
|
|||||
