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Adverse possession wipes away old claims on a rolling basis. As we will see, the effect of adverse possession on land records is not just simplifying but complicating as well: purchasers of property must investigate the “facts on the ground” to see if there are potential adverse possession claims not revealed by the records. Sometimes these three theories point in opposite directions but sometimes they coincide; they coincide in cases where, if not for the owner’s tardiness, the adverse possessor’s reliance would not build up and evidence would not get stale.
Adverse possession illustrates how seriously the law takes possession in yet another way. When an adverse possessor takes possession, the adverse possessor has rights good against everyone but the true owner. Possession is a close proxy for ownership—but not identical. An owner can give possession to another without losing ownership, as in bailments (see Chapter 4) and leases (see Chapter 6). Such voluntary surrenders of possession do not lead to adverse possession. Likewise, an adverse possessor in possession can maintain trespass actions against all others except the true owner, who in turn is expected to sue or kick off the adverse possessor before the statute of limitations has run. This is an example of the relativity of title: The adverse possessor does not have full ownership, but is like an owner with respect to people other than
the true owner. What if one adverse possessor (AP1) is ousted by another (AP2)? Here AP1 has better rights than AP2, illustrating the relativity of title. So it is not just that adverse possessors have better
title than all but owners; an adverse possessor has better rights than all but the owner and anyone with better (here, prior, involuntarily surrendered) possessory rights: O > AP1 > AP2.
•Sequential Possession, Finders, and the Relativity of Title
Relativity of title finds even more dramatic expression when we come to the law of sequential possession, including the law of finders.
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The most famous illustration and formulation of the law of finders is the case of Armory v. Delamirie.24 A chimney sweeper’s boy found a ring and took it to a goldsmith’s shop. The apprentice took the stones out and showed it to the master, who offered to buy them for a trivial sum. The boy refused, whereupon the apprentice returned the ring with the socket empty. Somehow the boy managed to bring an action in trover (damages for conversion of personal property) and won. The court chose to measure damages by the finest jewel able to fit in the socket unless the defendant could prove otherwise. The court stated that a finder has title good against all but the true owner. This demonstrates again the relativity of title, but goes further than necessary for the case. The court could have simply said that finders beat converters, as the boy was a finder, and the goldsmith effectively stole the stones from him.
More difficult cases involve earlier finders against later finders or earlier converters against later converters. Most courts (in the few relevant cases) have found that the first finder or converter beats the second finder or converter. Recall too that in the case of adverse possession the first adverse possessor wins over a later adverse possessor. Generally, courts have sought to protect the stability of possession by awarding the property to the party earlier in the chain of possession. No court that we know of has had to decide earlier converter versus later finder.
Finally, in a move reminiscent of accession, some courts and statutes make a distinction between lost property and mislaid property, the latter being property placed deliberately by the owner and then forgotten. If such a distinction is made, mislaid property is kept by the owner of the locus where the property is found, pending a claim from the true owner. This has been explained by hypothesizing that the true owner is more likely to recover the object if it is kept by the owner of the locus in quo, because the true owner is
24. 1 Strange 505 (K.B. 1722).
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likely to retrace his or her steps to inquire of all places previously visited in an effort to find the property.
• The Mosaic of Acquisition Principles
The conflict between a finder and a locus owner highlights the problem that the acquisition principles we’ve discussed can sometimes come into conflict. What if the fox in Pierson v. Post had been on private land? The law has varied on this question, but in the case of wild animals U.S. law has tended to favor hunters by making it harder to claim trespass in hunting situations (see Chapter 4). Outside the wild animal context, an intriguing set of cases comes from the law of meteorites, which as they enter the atmosphere have no known owners. Here locus owners almost invariably win over finders, and even over tenants in possession.
Reconciling the various acquisition principles can seem like a hopeless morass of analogies. Coming up with a clear answer is key, and courts prefer not to reward people who violate entitlements. Thus, trespassers tend to lose to locus owners, absent some widely accepted custom in favor of the finder. In some cases, custom may supply an answer as to how to treat finders versus locus owners (as when someone finds bees and follows them onto someone’s land). Sometimes the law of employment can furnish some guidance. Cleaning staff at hotels are usually held to be acting as agents for their employers. But in the end, tough cases remain.
• Further Reading
Richard A. Epstein, Possession as the Root of Title, 13 Ga. L. Rev. 1221 (1979) (justifying first possession as moving resources into private ownership with minimal government intervention).
Dean Lueck, The Rule of First Possession and the Design of the Law, 38 J.L. & Econ. 393 (1995) (analyzing the circumstances under which first possession is efficient).
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Th omas W. Merrill, Property Rules, Liability Rules, and Adverse Possession, 79 Nw. U.L. Rev. 1122 (1985) (summarizing theories of adverse possession).
Carol M. Rose, Possession as the Origin of Property, 52 U. Chi. L. Rev. 73, 78, 85 (1985) (emphasizing the role of notice in first possession).
Henry E. Smith, The Language of Property: Form, Context, and Audience, 55 Stan. L. Rev. 1105, 1115–25 (2003) (examining the communicative function of rules of original acquisition).
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