Adverse Possession

The Wallen family owned a cabin on Lummi Island in the state of Washington. A drive- way ran from the cabin across their property to South Nugent Road. Floyd Massey bought the adjacent lot and built a cabin on it in 1980. To gain access to his property, Massey used a bulldozer to extend the driveway, without the Wallens' per- mission but also without their objection. In 2005, the Wal- lens sold their property to Wright Fish Company. Massey continued to use and maintain the driveway without permis- sion or objection. In 2011, Massey sold his property to Robert Drake. Drake and his employees continued to use and main- tain the driveway without permission or objection, although Drake knew it was located largely on Wright's property. In 2013, Wright sold its lot to Robert Smersh. The next year, Smersh told Drake to stop using the driveway. Drake filed a suit against Smersh, claiming an easement by prescription(which is created by meeting the same requirements as adverse possession). (See Transfer of Ownership.)

1. Determine whether Drake's use of the driveway meets all of the requirements for adverse possession (easement by prescription). (Be sure to add and prove with the facts all the elements of adverse possession as well as determine if this is an easement and why?)
2. Evaluate the underlying policy and fair- ness of adverse possession laws. Should the law reward persons who take possession of someone else's land for their own use? Does it make sense to punish owners who allow someone else to use their land without complaint? Explain.

A Question of EthicsAdverse Possession.

Alana Mansell built a garage on her property that encroached on the property of her neighbor, Betty Hunter, by fourteen feet. Hunter knew of the encroachment and informally agreed to it, but she did not transfer ownership of the property to Mansell. A survey twenty-eight years later confirmed the encroachment, and Hunter sought the removal of the garage. Mansell asked a court to declare that she was the owner of the property by adverse possession. (See Transfer of Ownership.)

1. Did Mansell obtain title by adverse possession? Would the open occupation of the property for nearly thirty years be in Mansell's favor? Why or why not?
2. Was Mansell's conduct in any way unethical? Discuss.