Stokes v. Kummer is a case which reveals a divide different than most adverse possession cases. Instead of a dispute over a portion of land along the edge of two neighbors’ real property, this case regards ownership of land in its totality.
As to the divide then, we have a conflict between people who have lived and maintained this rather barren land situate to the east with owners of record title who live to the west of the Cascade Mountain divide.
As indicated in the opinion, one of these West of Cascades residing plaintiffs “visited the property shortly after she acquired it and was thoroughly unimpressed.” Moreover, this particular plaintiff never even got out of her car to walk the land.
Well, even though this rather scrubby agricultural land upon which wheat was grown only every other year was the land upon which local Defendants Kummer had sought to eke out their existence, the plaintiffs wanted it.
So, when the litigation fires were “Stokesed” by plaintiffs seeking to put them off the land, Kummer defended and won.
They were able to show these indicia of wheat farming during productive years.
- Reseed the Fields
- Sray for Weeds
- Harvest with a Combine
- Plow under stubble (when soil moisture allowed)
During fallow years Kummers performed these activities.
As to arguments, there is some chatter as to whether or not there was permissive use. In one instance this was put down as a result of failure as to privy – i.e. notice – of a contract between other parties … as opposed to lack of privity.
Another interesting rule which came from this is that if someone who has initially collected money on property and later doesn’t has the duty to check it out and eject for fear of losing the property. I don’t practice landlord/tenant law. But, this speaks to the idea of adverse possession operating as a statute of limitations – one of its primary operational reasons.
Permission failing such that hostility was yet present, the plaintiffs only recourse was an attack on notice.
The fact that most didn’t even attempt to take notice didn’t serve to assist their claim.
But most tellingly, the Division III court closed out its opinion by quoting the surveyor who said of the land:
“It’s either field or sagebrush.”
As a result, though it may have been difficult for the holders of record title to discern what may or may not be going on with the land, the rule from Chaplin was applied.
“The use and occupancy of the property need only be of the character that a true owner would assert in view of its nature and location.”
In cases like these, Justice Smiles strength remains discerning how the law as applied to the facts will likely drive a legal conclusion. Though we may have to supplement facts through conversation with surveyors, to get a head start on whether the case is even worth pursuing at all start by taking this Initial Assessment [HERE].