Acquiring Ownership Through Adverse Possession. In Space.

How could a private person go about acquiring ownership of land on a celestial body?  Principles of adverse possession–tested not only by time but by violent, brutal people in days of yore–offer a solution worth exploring.  This is a thought experiment, but I could see someone making these arguments in court one day.  Or putting them in a treaty.  Or a law.  First, however, let’s go over what it is.

According to one of my favorite websites, adverse possession is:

 a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations.

Squatters rights offer an example of adverse possession.  So do easements through someone else’s land.  However, to get real, bona fide, adverse possession, the possessor must satisfy those common law requirements. Although the requirements may vary from state to state in the United States, William Burby’s Hornbook (1980) offers a good list.  To qualify as an adverse possessor, the claimant’s possession must generally be “actual, open, hostile, notorious, continuous, and exclusive.”

Depending on the law of the state as to what constitute acts satisfying each of these elements (e.g., a state might require 15 years of occupation to deem the requirement for continuous possession satisfied), the possessor may be recognized as the new owner.  For example, if your neighbor digs out a vegetable plot in a corner of your yard without your permission and plants turnips and green beans, but only does so every two or three years, his use and possession may be adverse, open, and actual, but it’s not continuous so he can’t say he’s acquired ownership of that part of your yard.  If you, glaring throughout his intermittent occupation in a passive aggressive kind of way when he shows up, are also planting there his use is not even exclusive.  It’s still yours.

Policy.  What is adverse possesion good for on Earth?  It recognizes effort, work, and productive use of land.  It settles claims between a true owner and someone who’s been using land more productively if it’s fair.  The elements listed above are a means of determining that fairness.  What might it be good for in space?  Encouraging investment by rewarding effort.  Encouraging certainty by removing disquiet over whether one’s labor and investment will be taken.  Encouraging productivity by allowing owners to leverage their property through loans and put that leverage to productive use by mining, building, selling, and operating in a system where exchange is voluntary, transparent, and flexible.

Adverse/Hostile.  This week we’ll look at one of these elements, namely, the requirement that the possession be hostile, or, in other words, “adverse” to someone else’s property interests in the same land.

At the dawn of the space age (which is where we are), there’s not a lot of people to be adverse to in outer space.  This raises the question of whether this particular element should even apply to property claims on the Moon, Mars, or other celestial bodies.

Outer Space Treaty.  Right now, WalMart has no stores in space.  Marriott provides no lodging, and homesteaders aren’t thick on the ground or taking possession of lunar rills.  I don’t yet know if it’s even possible to claim adverse possession against a government’s land under the adverse possession paradigm, but that situation might not arise in space.  After all, under the Outer Space Treaty, governments may not appropriate outer space.

The Outer Space Treaty prohibits “national appropriation” of outer space.  Article II says:

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

In other words, for any country that signed the Outer Space Treaty, that country may not appropriate land on a celestial body just because it says so, the country builds a facility there, or has lots of people doing 3D printing in the Sea of Tranquility.  All their buildings and other property belong to the country that put it there, but the country doesn’t get to appropriate the land beneath.

This state of affairs deprives a potential squatter on the land of anyone to be adverse to.  So, now, at the dawn of the space age, is the requirement for being “adverse” appropriate in the space context?

Maybe we should wait a while before we export that requirement beyond Earth.  Or put it in a law.  Or a treaty.