{"id":3359,"date":"2021-08-24T21:17:45","date_gmt":"2021-08-25T01:17:45","guid":{"rendered":"https:\/\/groundbasedspacematters.com\/?p=3359"},"modified":"2021-08-24T21:17:45","modified_gmt":"2021-08-25T01:17:45","slug":"adverse-possession-part-2-open-and-notorious","status":"publish","type":"post","link":"https:\/\/groundbasedspacematters.com\/index.php\/2021\/08\/24\/adverse-possession-part-2-open-and-notorious\/","title":{"rendered":"Adverse Possession Part 2: Open and Notorious."},"content":{"rendered":"

I’ve been mulling over whether any elements of adverse possession might be useful for recognizing someone’s ownership of land on the Moon, Mars, or some other celestial body.\u00a0 Naturally, this means understanding the doctrine in its terrestrial manifestations.<\/p>\n

\"\"Last week I listed the requirements for someone other than the legal owner to gain title in the legal owner’s land.\u00a0 (When a list of legal requirements contains an “and” between the penultimate and last requirements, a claimant must satisfy all of them.)\u00a0 Among other things, the common law requires that the new possessor’s dominion over the disputed territory be “open and notorious.”\u00a0 In other words, the legal landowner must be able to tell that this new fellow is trying to horn in on his property–his activities must be open, notorious, able to be seen. The legal landowner can’t very well take steps to stop the adverse claimant if the doesn’t even know the sneaky fellow’s there.\u00a0 In other words, don’t go thinking you can claim ownership through adverse possession after years of gardening in your neighbor’s dense, Tolkienesque woods only at night and in secret.<\/p>\n

How would this apply in space?\u00a0\u00a0 Lunar lava tubes and craters spring immediately to mind.\u00a0 The Moon’s tunnels might be useful for housing people and equipment but such activity might not be obvious to others.\u00a0 Would it be equitable for a person to claim ownership if no one knew she was there, spent a lot of money to go to the same spot, and then encountered a previous occupant?\u00a0 Would it be equitable to foreclose the latecomer if the first occupant could easily have put up lights, a beacon, or a transmitter notifying the world of her presence?\u00a0 If she notified the right community of her presence, the second person could have chosen another site to explore and improve.<\/p>\n

In a different kind of scenario, if I snuck my mining operations into my neighbor’s cave, worked there continuously for the requisite amount of time, and then tried to claim ownership under the doctrine of adverse possession, would I succeed?\u00a0 Does this requirement fail on other planets?\u00a0 Or would it work exactly as intended and for the reasons intended?<\/p>\n

Looking at the 1937 Indiana Supreme Court case of Marengo Cave Co. v Ross<\/a>, we see that even with a lot of publicity, an adverse possessor claimant might not provide sufficient notice to the legal owner of land, and that the nature of the use matters.<\/p>\n

Facts of the matter<\/strong>.\u00a0 In 1883, a person named Stewart owned the land later owned by Marengo Cave Co. (Marengo). In September of that year some young people discovered the entrance to the cavern that came to be known as Marengo Cave.\u00a0 The entrance was located approximately 700 feet from the boundary line between the lands later owned by Marengo and Ross.\u00a0 It was the only entrance to the cave. The cave’s discovery and exploration received wide publicity, including through newspaper articles.\u00a0 Soon after the cave entrance’s discovery, Stewart took complete possession of the entire cave\u00a0 and used it for exhibition purposes.\u00a0 Stewart started charging an admission fee for entry,\u00a0 and successive owners, including Marengo, continued this practice from 1883 until the time of the lawsuit, except for occasional grants of permission to persons who didn’t have to pay.<\/p>\n

No one knew until 1932 that part of the cave extended under Ross’ land.<\/p>\n

In the years that followed, successive owners of the land upon which the cave’s entrance was located advertised its existence through newspapers, magazines, and posters to attract visitors.\u00a0 They made improvements within the cave, including by building concrete walks and steps, and making parts of passageways bigger.\u00a0 They furnished guides.\u00a0 In sum, the successive owners of the cave entrance land:<\/p>\n

continuously, during all this time, without asking or obtaining consent from any one, but claiming a right so to do, held and possessed said subterranean passages constituting said cave, excluding therefrom the \u2018whole world,\u2019 except such persons as entered after paying admission for the privilege of so doing, or by permission.<\/em><\/p>\n

Ross purchased the land adjacent to Marengo’s property in 1908. He paid to visit the cave several times himself. Ross never occupied or took possession of any of the cave’s subterranean passages or cavities.\u00a0 The court noted that Marengo’s possession and use of the cave never interfered with Ross’ use and enjoyment of his lands. For approximately 25 years prior to Ross’ purchase of his land, and for 21 more years afterwards, Marengo Cave Co. and the land’s previous owners had exclusive possession of the cave.\u00a0 The court noted that Marengo and the land’s previous owners all thought that the whole of the cave was under their own land.<\/p>\n

Ross brought suit and requested a survey in 1929, approximately 46 years after discovery of the cave and the exercise of complete dominion of it by Marengo and the land’s previous owners.<\/p>\n

Legal issues<\/strong>.\u00a0 Marengo lost at the trial level and claimed on appeal that it owned those parts of the cave beneath Ross land by adverse possession.\u00a0 The court described the requirements of adverse possession:<\/p>\n

All the authorities agree that, before the owner of the legal title can be deprived of his land by another’s possession, through the operation of the statute of limitation, the possession must have been actual, visible, notorious, exclusive, under claim of ownership and hostile to the owner of the legal title and to the world at large (except only the government), and continuous for the full period prescribed by the statute. The rule is not always stated in exactly the same words in the many cases dealing with the subject of adverse possession, yet the rule is so thoroughly settled that there is no doubt as to what elements are essential to establish a title by adverse possession.<\/em><\/p>\n

The court then reviewed each of the elements, but for today, let’s look at what the court said about the requirement that possession had to be open:<\/p>\n

The owner of land who, having notice of the fact that it is occupied by another who is claiming dominion over it, nevertheless stands by during the entire statutory period and makes no effort to eject the claimant or otherwise protect his title, ought not to be permitted, for reasons of public policy, thereafter to maintain an action for the recovery of his land. But, the authorities assert, in order that the possession of the occupying claimant may constitute notice in law, it must be visible and open to the common observer so that the owner or his agent on visiting the premises might readily see that the owner’s rights are being invaded.<\/em><\/p>\n

Someone claiming ownership under adverse possession must show that the legal owner had actual or imputed knowledge that his land was in the claimant’s possession.\u00a0 For knowledge to be imputed to Ross, Marengo’s possession had to be “so conspicuous that it is generally known and talked of by the public.”\u00a0 Where the owner doesn’t have actual notice, “the possession must have been so notorious as to warrant the inference that the owner ought to have known that a stranger was asserting dominion over his land.”\u00a0 Although the community knew that Marengo had possession of the cave, no one knew that part of the cave was under Ross land.<\/p>\n

Applying these rules of law to the facts at hand, the court found that Marengo’s possesion of Ross land was not visible:<\/p>\n

No one could see below the earth’s surface and determine that appellant was trespassing upon appellee’s lands. This fact could not be determined by going into the cave. Only by a survey could this fact be made known. The same undisputed facts clearly show that appellant’s possession was not notorious. Not even appellant itself nor any of its remote grantors knew that any part of the \u2018Marengo Cave\u2019 extended beyond its own boundaries.<\/em><\/p>\n

Thus, although Marengo had possession of the cave for more years than required by the statute of limitations, the court denied its claim of ownership of that part of the cave located in Ross land.<\/p>\n

Applicability in space<\/strong>.\u00a0 Although the circumstances of life may be different on the Moon than on Earth, the principles may still apply, merely to different facts.\u00a0 They could play out in two different contexts.<\/p>\n

The far future<\/strong>.\u00a0 The longer term context might encompass a well-populated Moon, where private parties might find themselves digging under each other’s territories, not only for mining, but for living space.\u00a0 In that context, a lunar court might think differently than the Indiana court about whether the original owner “should have known” that someone was operating beneath his living room.\u00a0 A survey of something that nature concealed might seem more reasonable if everyone owns the right equipment or someone has mapped.\u00a0 Conversely, if one didn’t even know of the need to survey, the outcome of a parallel lunar situation might be the same.<\/p>\n

Near future<\/strong>.\u00a0 In the immediate future, however, if we were to borrow some of adverse possession’s requirements to encourage people to go to the Moon and engage in productive behavior by giving them some certainty that the land they worked would\u00a0 be theirs, how necessary is the “open and notorious” requirement?\u00a0 Must someone’s presence be visible to the community?<\/p>\n

Suppose the first person on the Moon is working in a lunar crater.\u00a0 Remember that she is in an environment where many legal scholars think Article II prevents grants of title as an exercise of forbidden national appropriation. Accordingly, disputes might play out in courts or through arbitration per this fellow’s surmise<\/a>. Still, our early settler might want to think that if she’s setting up, creating an atmosphere for, and making improvements to an underground lunar crater, that she has recourse if anyone tries to take it from her.<\/p>\n

What policy considerations are in play for her?\u00a0 If recognizing her ownership requires her open and notorious possession and she’s planning a flying gym like Heinlein described in The Menace from Earth<\/a>, she might gladly put up a sign at the entrance, string lights around the perimeter, and put notices in The Wall Street Journal, on her website, and YouTube.\u00a0 If she’s prospecting for platinum group minerals, she might be less extroverted about the whole thing.\u00a0 Even if she’s lonely up there at first, she might not want to risk someone else coming along and trying to reap the fruits of her labors.\u00a0 But if she finds water ice or platinum group minerals and wants to claim the land around her find as hers, how can anyone know to leave it alone if she’s invisible?<\/p>\n

Who is the community?\u00a0 In the Indiana case, it was likely everyone within reach of the newspaper advertisements.\u00a0 For the first people to go work on the Moon, the community could be all of Earth as, rapt, we watch and follow their endeavors.\u00a0 By the time there are a dozen such enterprises, the novelty might wear thin and we’ll all get bored.\u00a0 Has the community shrunk to only those on the Moon?\u00a0 Only any given person’s immediate neighbors?\u00a0 Surely the community must include people on Earth who are planning to set up shop on the Moon.\u00a0 They’re the ones who need to know that someone has settled into the crater she got to first.<\/p>\n

Before anyone memorializes this aspect of adverse possession in a law or treaty, further research, thought, and imagination may be required.<\/p>\n","protected":false},"excerpt":{"rendered":"

I’ve been mulling over whether any elements of adverse possession might be useful for recognizing someone’s ownership of land on…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","enabled":false},"version":2}},"categories":[1],"tags":[100,160],"class_list":["post-3359","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-adverse-possession","tag-article-ii-outer-space-treaty"],"jetpack_publicize_connections":[],"yoast_head":"\nAdverse Possession Part 2: Open and Notorious. - 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