gray-large.pngI explained that the element “Open & Notorious” is actually “two sides of the same fence” in this recent post. There I indicated that “Open” is the way the putative adverse possessor demonstrates possession. “Notorious” is how the title holder, or the world as the title holder’s proxy, recognizes this demonstration.

Well, how far of a stretch then is it to also identify that the elements “Hostile” and “Exclusive” operate in the same way. Hostile does not represent “ill-will”. Instead, it means that one is exerting a superior claim over the property of another.

Going back to some of the first law school classes of property law, we find that property is considered a grouping of several rights. The common parlance is that property is a “bundle of sticks.” One can give away some of the sticks and retain others.

If this is so, when a putative adverse possessor exerts a superior right in a manner that is deemed “Hostile” to the title holder, doesn’t the adverse possessor corelatively “Exclude” the title holder from those same rights.

So, using this as a context. Let’s think for a moment what really is the difference between claims of adverse possession and prescriptive easement. Yes, you’ve got it! The common understanding is that the element of “Exclusivity” is absent with prescriptive easements.

But, doesn’t this really just suggest that there is a different degree of “Hostility?” In other words, in the case of adverse possession, the adverse possessor is able to claim that ALL the rights have been usurped. Whereas, in the cases of prescriptive easement, only a PORTION of the rights have been excluded from the title holder.

This certainly makes sense when we think about who is getting ahold of which sticks in the bundle … and to what degree?gray-small.png