van valkenburg v. lutz

Van Valkenburgh v. Lutz

Facts: AP's bought land which was previously APE's for 15 years in a foreclosure sale. After APE cleared most of his belongings off the land which was foreclosed upon, but argued he still had the right to the traveled way to his remaining property, which were on property adjacent and behind the foreclosed land. AP built a fence blocking the right of way, which had been used for several years by APE's.

Rule: NY Law: "To acquire title to real property by adverse possession not founded upon a written instrument, it must be shown by clear and convincing proof that for at least 15 years there was an "actual" occupation under a claim of title, for it is only the premises so actually occupied "and no others" that are deemed to have been held adversely.

Issue: Under adverse possession, does a person have a right of traveled way through someone’s property?

Reasoning: The court ruled that there was a two ways that someone could obtain land through adverse possession: 1) by enclosing the land or 2) by cultivating or improving the land. The court ruled that the (D) did neither in this case. They did not cultivate all the land and they did not improve the land.

Dissenting: they did improve they land; they tilled it, plowed it, cultivated it, built on it, etc. They did use the majority of the property as they should have.

Notes:

There must be (1) an actual entry giving exclusive possession that is (2) open an notorious, (3) adverse and under claim of rights, and (4) continuous for the statutory period.

Ewing v. Burnet – there is a difference between being absent and abandoning property.

Entry and exclusive passion rule: title can come from adverse possession if the property is used for eth duration of the time needed in a manner that an average true owner would use it.

Notorius – Cave case where (D) had cave that went under (P) property. (P) sued. Could not have adverse possession because it was not notorious.