Stump v. Whibco

314 N.J. Super. 560, 715 A.2d 1006 (Super. Ct. App. Div. 1998)

 

RULE:

The burden of proof rests on the party claiming title by adverse possession and that any adverse possession must be open, notorious, continuous, uninterrupted and exclusive for the prescriptive period with the acquiescence of the owner. After evidence is introduced on these jurisdictional elements, then a presumption arises that the use was adverse except when the land is vacant, unimproved, unenclosed and the use is casual rather than customary.

FACTS:

Appellant possessors sued to quiet title to a parcel of land which they occupied and of which they claimed ownership by adverse possession. Respondent owner counterclaimed for possession and the removal of appellants' encroachments. The trial court entered judgment for respondent on the claim of adverse possession and retained jurisdiction over the encroachment issue. Appellants sought review of the trial court’s order. The appellate court affirmed the trial court’s order.

ISSUE:

Did appellant possessors establish their claim of adverse possession in relation to respondent owner’s land?

ANSWER:

No.

CONCLUSION:

Appellant possessors failed to sustain their burden of proving open and notorious possession for the requisite period of time. The period of open and notorious possession began when appellants replaced an old mesh fence with a new railroad tie and cable fence. Since, from the proofs, the earliest date that could have occurred was 1967, appellants failed to satisfy the 30-year requirement by the time respondent asserted ownership of the land.

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