READ ABOUT: Alternative Arguments to Adverse Possession
By: Rudman Winchell Attorney Mikaela Wentworth
While adverse possession is probably the most well known common law method of acquiring an ownership interest in real estate based on possession or use, two other methods – practical location by parol agreement and boundary by acquiescence – have also been recognized by Maine courts. “The rule of practical location applies “[w]here adjoining owners deliberately erect monuments, fences, or make improvements on a line between their lands on the understanding that it is the true line . . . . A practical location may be along a wrong line, and either of the parties so making may be estopped to claiming to the true line, especially when acquiesced in over a long period of years.” Calthorpe v. Abrahamson, 441 A.2d 284, 288-289 (Me. 1982) ( citing H. Skelton, The Legal Elements of Boundaries and Adjacent Properties § 322 at 362-63 (1930)).
Boundary by acquiescence developed out of the theory of location by agreement. It does not require evidence of an express agreement but rather applies where certain conduct of the parties implies that such an agreement was reached.
Specifically, the person invoking a boundary by acquiescence argument must prove the following elements: “(1) possession up to a visible line marked clearly by monuments, fences or the like; (2) actual or constructive notice of the possession to the adjoining landowner; (3) conduct by the adjoining landowner from which recognition and acquiescence, not induced by fraud or mistake, may be fairly inferred; and (4) acquiescence for a long period of years.” Hamlin v. Niedner , 2008 ME 130, ¶ 7, 955 A.2d 251, 254.
It is important to remember that the twenty year use requirement of adverse possession does not apply to the rules of practical location by parol agreement or boundary by acquiescence.
If you are involved in a boundary dispute, we invite you to set up an appointment with one of our attorneys to discuss the extent to which any of these legal theories may have an impact on your case.