Adverse Possession vs. Perry Mason

There have been many cases of adverse possession being settled in a court room.  Here is one of them.

It happened way back in 1952.  The Court of Appeals of New York decided a case entitled Van Valkenburgh v. Lutz.'

Let's move even further back in time...

The recorded history of William Lutz begins in 1912 when he moved to Yonkers from New York and bought lots 14 and 15, block 52, in a then largely unimproved subdivision known as the Murray Estate.

Immediately adjoining was a triangular tract of land formed of lots 19, 20, 21, and 22, which tract is the subject of the litigation.

Living elsewhere in Yonkers, Lutz and his brother Charlie cleared the land, including a considerable part of the triangular tract which he didn't own. From that time on the Lutzes paid little attention to lot lines. In 1917 Lutz began the construction of a house, on a do-it-yourself basis. The family moved into the house in 1920 when it was nearly completed, and continued to live there until 1948 when Lutz died.

His wife still lived there at the time of the action. Five Lutz children grew up in this house and most of them left it for a wider world. The house stands entirely on lots 14 and 15, the property owned by Lutz.

As early as 1914, Lutz began cultivating the triangular tract. Fruit trees were planted on it and a garden was begun. This gardening appears to have gone on throughout the entire period. 

Between 1919 and 1923 Lutz built a one-room structure wholly on the triangular tract which he did not own. This structure, known to the neighbors as "Charlie's House" and Charlie still was living in it at the time of the action.

At about the same time, they also built a garage. The garage, for the most part, was on the property owned by Lutz; but concededly there was an encroachment onto the triangular tract.

In 1928, a private pipe line which Lutz had installed was broken by road contractors. Lutz, who was working at the time in New York, had to come home to fix the line. As a result he lost his job and, somehow, never got another. He was, as one witness testified, "usually always at home," tending the garden, selling vegetables, doing odd jobs.

The triangular tract was used by the Lutzes for purposes other than gardening and Charlie's residence. Chickens were raised and these were kept in coops on the tract. The land was also used as a depository for what was variously described as "junk," "rubbish," "debris," and "father's personal belongings." This consisted of cast-off furniture, salvaged building materials, and sundry automobile parts. In addition, the Lutzes and others used a well-defined strip referred to as the "traveled way," which crossed the premises in question and terminated at Lutz's garage.

In 1937, Joseph D. Van Valkenburgh built a new house, within sight of the property in dispute. In 1946, some trouble arose between Lutz and Van Valkenburgh, as a result of which Lutz was arrested.

In 1947, the Van Valkenburghs bought several lots from the City of Yonkers in proceedings to foreclose tax liens; these were not in rem proceedings. The Van Valkenburghs' purchase included the four lots forming the triangular tract which the Lutzes had been using since 1912. Soon after this purchase the Van Valkenburghs put a fence across the "traveled way." More trouble. Lutz brought an action and Van Valkenburgh was enjoined from
maintaining the fence.'

In that action Lutz testified that he knew all the time that Charlie's House was built on someone else's land, but that he thought he was building the garage wholly on his own land.

In August, 1948, William Lutz died. In October, 1948, Van Valkenburgh brought an action to compel the removal of the garage, shack, chicken coop and other things from the triangular tract and to compel delivery of possession of the land to the plaintiff. At the trial before a referee, in 1951, the testimony of William Lutz, given in the earlier action, was introduced along with other testimony, totaling some 250 pages. There were 56 exhibits, consisting of deeds, surveys, and photographs.

The referee found that Lutz had acquired title to the triangular tract by adverse possession, at least by 1935 ( the New York Statute of Limitations is fifteen years), and, on this finding, judgment was entered for the defendant, Mary Lutz. This judgment was affirmed by the Appellate Division.'

The Court of Appeals, by a four to three vote, reversed and ordered judgment for the plaintiff for the relief prayed for in the complaint, subject to the existing easement over the "traveled way."

The majority opinion may be summarized as follows:

1. Under New York law, to acquire land by adverse possession not founded on a written instrument there must have been an actual occupation under claim of title. Only the premises actually occupied are held adversely. In order to show actual occupation it must be proved either that there was a substantial enclosure or that the premises were usually cultivated or improved.

2. Concededly, there is no proof that the premises were protected by a substantial enclosure, and the proof of cultivation fails to show that the garden utilized the whole of the premises claimed. This lack cannot be supplied by inference from the cultivation of an ill-defined smaller area.

3. As to the question of improvements, I quote:

The proof fails to show that the premises were improved. According to the proof the small shed or shack ( about 5 by 1032 feet) was located on the subject premises about 14 feet from the Lutz boundary line . and, as Lutz himself testified, he knew at the time it was not on his land, and his wife, a defendant here, also testified to the same effect.

The statute requires as an essential element of proof, recognized as fundamental on the concept of adversity since ancient times, that the occupation of premises by 'under a claim of title'.  In other words, hostile, and when lacking will not bar the legal title no matter how long the occupation may have continued.

Similarly, the garage encroachment, extending a few inches over the boundary line, fails to supply proof of occupation by improvement. Lutz himself testified that when he built the garage he had no survey and thought he was getting it on his own property, which certainly falls short of establishing that he did it under a claim of title hostile to the true owner.

Lutz's position that the triangular tract belonged to Van Valkenburgh was made clear, the court said, by his bringing of the former action to establish an easement by prescription over it in favor of himself.

There was a considerably more lengthy dissenting opinion which, for our purposes, may be summarized as saying that all this is wrong.

I do not propose to go into all the questions raised by the case at this point. I'd like, however, to make some comments:

1. All this disagreement over a relatively simple case makes it clear that there's a lot here that hasn't been resolved in more than three hundred years.

2. It's possible to say, and it may be perfectly correct to say, that all the talk in the opinion between the statement of facts and the decision has very little to do with the actual reasons for the decision. As students love to say, it's just a "peg" on which to hang a decision already reached by undisclosed devices. Lutz's actions according to the brief of the plaintiff, "were typical of an irresponsible squatter, guided by motives of pure expediency. [He] did nothing to improve the land but littered the woods around his house with filth and junk, brought in by scavenging the dump.

On the other hand the plaintiff is trying merely to obtain the normal rights of ownership and to protect his home by cleaning up the neighborhood."

The defendants brief looks at the matter differently: In their view, the plaintiff, "obviously manifesting his self proclaimed superiority to poor people, means to clear the neighborhood of the Lutz family who were born, nourished and grew into manhood and womanhood there long before Van Valkenburgh took it upon himself to attempt, at all costs, to drive them out."'

Is the disagreement over these considerations, or others like them? If we believe it is, shouldn't we attempt to fit them into some orderly pattern? This sort of thing is too easily used as the basis for a nothing-to-worry-about-because-nothing-we-can-do-about-it attitude.

If we are going to talk about the judge's breakfast, and that thing is still appearing in print in 1960,' then we'd better be prepared to analyze it. And while we're at it, we'd better include lunch and dinner too; not all judicial decisions are made in the morning. If it's true that the "stuff" of judicial decision is merely a "peg," then it may even be worthwhile to improve the pegs.

3.   It's true that some of the requirements of adverse possession which the New York Court relied upon are statutory. The requirement that the occupancy be under a "claim of title" is in a statute.'
 
So is the requirement that the potential claimant must show either a substantial enclosure or that the premises were usually cultivated or improved.' But this makes no difference. It want to say that we don't have to consider this question because it has already been decided by the legislature. Statutes and judge-made law should, it seems to me, have the same basic purpose. Both can be made; both can be changed; and one should be no less subject to examination than the other.

4.   The elements of the opinion in the Lutz case which have to do with the state of Lutz's mind as to the ownership of the land are not atypical of adverse possession cases. This has been one of the main difficulties. It is unusual, perhaps, for the facts to fall in such a way that both sides of the matter are presented in one case. Prowling around in Lutz's head produced a result which, superficially at least, is remarkable.

Lutz was not an adverse possessor with respect to Charlie's shack because he knew it was on someone else's land. He was not an adverse possessor with respect to the garage because he thought it was on his own land.

I'm always a little suspicious of my logic in these matters; but if you compare this with a list of the possible states of mind you may conclude that the only true adverse possessor is one who, with respect to the title to the land, has no views whatever. Now, this may be what we want, but I should think the burden is on the proponent.
 
The decision in Van Valkenburgh v. Lutz is within the area of law commonly referred to as Adverse Possession, which is the subject of these discussions. It is difficult, at the outset, to resist the temptation to plunge at those two words, tear them syllable-from-syllable, and invite you to view the emptiness which remains. I hope I can resist that temptation.

The words have a history of long and widespread use which carries a presumption of usefulness and which entitles them to some respect from the likes of me.

Once a rule of property is established, under a general system like our present one, we almost never can get completely free of it. Chains of title to land depend on the law in force at the time each link was added.  

Rural Land Purchase and Adverse Possession >>