I know. I know. This adverse possession series just won’t end. Remember, however, that there’s a super long list of criteria that a potential adverse possessor must satisfy, and she must satisfy each of them–not just some–to gain title. One of those is that her adverse possession must be continuous for the duration of the required time. But what does continuous mean?
It sounds so easy. She has to be in possession all the time. Does that mean literally all the time, every second of every day? No. In fact, the law recognizes that whether possession is continuous may depend on the nature of the land’s use. For example, my hornbook tells us that in Kellog v Huffman,
an adverse possessor used land for grazing purposes during the entire grazing season of each year. While this did not include every day of each year the possession was held to be continuous within the meaning of the rule. The land was reasonably adapted for the use under discussion. So also, in Britt v. Houser (Ky), [footnote omitted] the continuity of possession was not broken by the fact that at times each year actual use of the land was not possible because of flood conditions of the Ohio River. *
It seems it was more the use that was adapted to the land, rather than the other way around, but never mind. It’s clear enough.
Moving on, we can glean two things from the examples. First, adverse possession need only be continuous for the purposes of the use. That’s why, even if the claimant didn’t have his cattle on the legal owner’s land every day of the year, continuous possession only over the course of a grazing season counted. Note as well that the hornbook (and presumably the court) said the entire grazing season. In other words, a claimant grazing his cattle for only part of the season would have failed to acquire “continuous” status. He’d just be a trespasser.
We’re not looking at much in the way of seasons on the Moon, but perhaps Mars will offer more variability. The principle may be applied to novel circumstances, but it may still be applied.
Another take-away from the hornbook summary is that if forces of nature outside one’s control interrupt continuous possession, the courts may still find it continuous under the law. Thus, an adverse possessor being driven off the land by a flood did not have his absence for the duration of the flood held against him when determining whether his possession was continuous or not.
Here the Moon might offer a parallel. We can imagine lunar activities requiring solar power. Sure, daylight lasts for two weeks on the Moon but so does night. How long an industrial battery lasts for supporting a power-intensive activity might be an interesting question if operations cease during a lunar night. After all, lunar night is a force of nature outside one’s control. It might even be counted as akin to a grazing season, to borrow from the first example.
On the other hand, what if someone else has bought the more expensive batteries and claims the same land? Or, what if the batteries exist but a claimant decides they are too expensive for the time being? Does lunar night remain a force of nature outside one’s control? If an operation is not too power-intensive, would a court say lapses in operation take away from a finding of continuous possession?
These types of questions highlight how fact-intensive an inquiry into whether possession is continuous might become. Circumstances in space might differ from the more ground based, but the underlying principles may still be applied.
*Burby, Real Property, p. 274 3d Ed., West, 1980.