I’m continuing to noodle over how the various criteria of adverse possession might work in outer space or on other planets. One criteria, naturally enough, is that an adverse possessor actually possess the land in question. So what is “possession?”
It depends. The hornbook states that one who exercises dominion over land acquires the status of possessor. Dominion, of course, is just another big word, so the real tests lie in individual states’ laws, where the outcomes may vary depending on the conditions, including the size of the area at stake, its location and its normal use. In other words, the law recognizes that what may constitute possession in one set of circumstances may not suffice in another.
For example, some jurisdictions have decided that using land for cattle grazing may count for purposes of adverse possession when that is the normal purposes of the land. Other courts have decided that where local policy allows unrestricted grazing upon unenclosed land, that a claimant may show possession only if he fences in or otherwise encloses the land.
Let’s look at a Texas cattle-grazing case to get a feel for what “possession” means, even though the court found that the claimant failed to establish possession. McDonnold v Weinacht, 465 SW2d 13648 (Tex. 1971) involved Weinacht’s claim that the presence of his cattle and horses counted as possession of a portion of his neighbor’s land. However, because the animals had to leave the neighbors’ land for water and salt located on Weinacht’s own land, the court found that Weinacht’s cattle only created a case of “incidental enclosure and incidental grazing, and these are insufficient as a matter of law to constitute a visible appropriation of the land.”
Nor did the court find persuasive that Weinacht and his sons cut burs and poisonous weeds in the 400-acre trap legally owned by the neighbor:
There is testimony that the weeds were cut ‘every year,’ but no one undertook to say whether this was done more than once a year or how long each operation lasted. Weinacht evidently had the right to cut weeds on the SW/4 he held under the *144 Goulds, and his keeping the trap free of weeds could hardly be considered an appropriation of the remainder of the land in the enclosure. It is settled, moreover, that the cutting of weeds is ‘not such use of the property as to meet the requirements of 
Article 5510 V.A.C.S. for establishing title by adverse possession.’ City of Dallas v. Etheridge, 152 Tex. 9, 253 S.W.2d 640. This is in accordance with the general majority rule that cutting and gathering a natural crop does not constitute adverse possession. Annotation, 170 A.L.R. 838, 863. Here the cutting of weeds was no less incidental than the grazing of the tract or its inclusion in the enclosure maintained by Weinacht.
In short, here is a case where some use of the land and some working of it did not rise to the level of possession necessary to find for the claimant Weinacht. The case was further complicated by the claimant’s failure to be open and hostile about his use, and, to be honest, the dissent made a very good argument for why the claimant should have been found to establish possession. Also, the majority suggested that had the claimant fenced the land, kept more cattle there, and the cattle hadn’t had to leave for water, it might have been possible to find Weinacht in possession of the land. Thus, the cattle provide an interesting analog to contemplate.
In space. I doubt we’ll be seeing cattle grazing the lunar regolith any time soon. Nonetheless, the principles underlying various courts’ reviews of cattle grazing suggest that possession doesn’t necessarily require a person’s presence. Cattle, after all, aren’t people (Dogs are, but I haven’t found a dog case, so we’ll have to talk about that later). Nor are robots people (not yet, anyway, but, again, we’ll have to talk about that later. And on a different blog.) Even so, if the presence of a claimant’s cattle has the potential to establish possession (even if not in the Weinacht case), why couldn’t the presence of robots?
Robots can be autonomous or remote controlled. The autonomous ones are more like cattle, just beavering away at whatever it is they’re doing, whether it’s mining the regolith, printing sunshades, making toothrbrushes, or whatever. We must recognize, however, that someone, some person, programmed them to do these things. They have an owner for whom they labor. Their owner is using the land through them. If the robots’ owner satisfies all the other requirements for adverse possession, a court could find that he has possessed the land.
An even easier case of possession would be if the robot’s owner operated the robots remotely. There’d be a person in the loop, and even if he didn’t have his own boots on the celestial body’s ground, he could be exercising dominion over it by digging, mining, or building. The robots would constitute close to real-time tools. (I remember when I was working on launch safety regulations for the FAA, the federal ranges called a signal with a little bit of a lag “real-time.” The fellow explaining it was kind of sheepish, but they were getting the signal as soon as anyone could, so using “real-time” wasn’t too terrible a stretch for them. All of which is to say that if a federal range can use “real-time” for any lag at all, I can say “real-time,” too.)
So long as a claimant met the rest of the criteria by establishing that his possession was continuous, adverse, open, hostile, exclusive and notorious, he might gain recognition of his ownership.
Who would recognize the ownership? That really is a topic worthy of a separate post, and I’ll get to it.
P.S. The short story Fractional Ownership has nothing to do with adverse possession. I am using it as the visual for this post more because a) it shows cattle, and b) shows cattle over a Martian landscape. The story is a legal fantasy about fractional ownership, as in aircraft and raw milk.