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Adverse Possession and Open Range
by Jack W. Herzberg

Seven years ago, Mr. James F. Davis initiated a western re-enactment group emulating both historical and general events from the old west of the late nineteenth century. As a long time Arizona resident, he has been a paragon in his community as a real estate agent and a heating and air conditioning pipe fitter. But his love for the cowboy way of life had been somewhat dampened by events that have recently taken place concerning his land in Pinal County, Arizona.

Mr. Davis and his new wife, Carla, bought the land, about 60 acres in an open range district of the county, two years ago planning to make a site for his wife and him to develop and build their own old west town, Jamestown, and for their retirement. They paid for the land in the usual manner and always paid the taxes levied by the county as they became due. The site was quite bucolic with grazing lands all around it and cattle roaming from place to place, sometimes roaming onto the Davis property and that of John Scott, Robert and Anita MrKich and Geneva Rodgers, as well as that of other private owners.

With the advent of the cattle on their properties, their trouble began. Although their land was in a section adjacent to public lands legally leased to the rancher, John Scott's and the MrKich's properties became the subject of a dispute between them and Mr. and Mrs. Joe and Carmen Auza of the Auza Sheep Company located in Casa Grande, Arizona. The legal question in this dispute is adverse possession.

What the Auza's want to do is to legally take possession to the title of the half of John Scott's 20 acres and half of Robert and Anita MrKich's and Geneva Rogers's, as partners, 20 acres. The parcel has an old rundown corral on it, located on both halves, and the Auza's want to add it to their own holdings. They also want to extinguish an easement that would effect James and Carla Davis's property, and extinguish and close an easement that would have an effect on four others involved in this action. The Auza's had never filed for a grazing easement on the any of the disputed property, which would have required several years of continuous occupation by the grazing herd. No, they asked for adverse possession immediately by filing the claim in Pinal County Court, case number CV-200400465. The claim takes in a total of eleven small landholders in all, including those affected by the attempted closure of the easement by the Auza's.

Adverse possession requires the claimant to show that he has met several burdens, legally, before the land can change title. According to Black's Law Dictionary: 1) The claimant must maintain the statutory period of time to gain such possession. 2) The claimant must establish "proof of nonpermissive use, which is actual, open, notorious, exclusive, and adverse" for the statutory period. The time period may differ from 20 years to a minimum of 5 years. These periods can differ greatly, depending on whether the taxes were paid by the claimant or whether or not the claimant has color of title.

If the claimant has been open and notorious, then the owner would have to have received legal notice of the claim in some provable manner-either by sending a return/receipt letter or by publishing a notice of the claim in a newspaper of record. Both of these methods are provable with the appropriate documentation presented to a court.

The claimant must take exclusive possession of the property. That is, he must exclude the titleholder from the property, physically, in a provable manner. If the titleholder appears once on the property during the statutory period, then the period must start all over again. It would be a good idea if the titleholder would have a photograph taken of himself on the property after he received notice of the adverse possession attempt.

Finally, the claimant must make his claim in "opposition to all the world" with the idea that the titleholder is well aware of the claim. That is, for the claimant to be successful, he must show to a court that the titleholder has been made completely aware of the adverse possession claim and that it was obscured in no way.

Meeting these requirements is extremely difficult. Only if the titleholder wished to be rid of his property for some reason, could a claim of adverse possession practically succeed.

The Auza's claim is completely obnoxious and onerous for the Davises, the MrKicks, Mr. Scott and the others involved as defendants. However, it is a bit frightening in that the claim was made at all. This means that they all have to go to the expense of defending their properties in court. In the mean time, their properties are tied up with clouds over the titles while the case is active.

This brings us to the issue of open range and fence laws. From the American Law Reports, Annotation 158 ALR 375:

"...Fence laws have been enacted in many states declaring in effect that the owner of land cannot recover for damages caused by another's livestock which has come upon his land, unless the land was inclosed by a 'legal' or 'lawful' fence. However, the defense that the plaintiff failed to maintain a 'legal' or otherwise suitable fence is generally considered unavailable in an action for trespass by the defendant's stock, where it appears the intrusion of the stock was the result of willful or intentional trespass on the part of the defendant, and so the right of the owner of land not inclosed within a legal or suitable fence to maintain an action of trespass against the owner of livestock which went on to his land generally depends in a large part upon whether a willful or intentional trespass was committed."

Also, several cases have been decided in the federal courts and the United States Supreme Court in favor of the land holders:

Smith v. Bevins et al. 56 F 352, 356

"Thereafter the legislature passed an act exempting this land, with other tracts, from the provisions of the law, the
effect of which was to require complainant either to fence his whole tract against cattle, or to submit to have it trespassed upon, without redress, by any cattle whose owners chose to let them run at large. Held, that this is not within the police power of the state, and violates the federal constitution, inasmuch as it deprives complainant of his property without due process of law.

"...The court [in Fort v. Goodwin, 15 S.E. Rep. 723], considering the question [trespassing on swamp land], hold that the effect of the act is the taking of private property, in the same sense of the constitution. The court [supreme court of South Carolina] says:

It may be possibly inferred that it is for the benefit of those whose business is to raise stock. It manifestly increases the burdens of the freeholders within the inclosure, who make objection that their lands are to be turned into public pasture, * * * and thus required to fence any portion of their lands which they may wish to cultivate. As we think, the legislature cannot accomplish such purpose."

Lazarus v. Phelps, 152 US 81, 85

"If, for example, a cattle owner, knowing that the proprietor of certain lands has been in the habit of leasing his lands for pasturage, should deliberately drive his cattle upon such lands in order that they might feed there, it would scarcely be claimed that he would not be bound to pay a reasonable rental. So, if he lease a section of land, adjoining an unenclosed section of another, and stock his own section with a greater number of cattle than it could properly support, so that, in order to obtain the proper amount of grass, they would be forced to stray over upon the adjoining section, the duty to make compensation would be as plain as though the cattle had been driven there in the first instance. The ordinary rule that a man is bound to contemplate the natural and probable consequences of his own act would apply in such a case."

Light v. United States 220 US 523, 537

"Fence laws do not authorize wanton and willful trespass, nor do they afford immunity to those who, in disregard of property rights, turn loose their cattle under circumstances showing that they were intended to graze upon the lands of another."

Open range laws, as they are construed today, seem to give a grazier permission to trespass on others property. Nothing could have been more remote from the original intent of open range laws. They were created to fairly share the vast public lands that were common in the west. When sodbusters came to be, the governments usually took steps to protect those settlers and their farms from grazing cattle. It was prevalent to have a cowboy on the grazing site to protect sheep or cattle from predators, lead them to water, and steer them from other's private lands. Cowboys are now uneconomical.

Open range laws currently have been upheld as a way to promote trespassing on others private property by graziers. Contemporary law makers, who have not been versed in the history of open range theory, have made holding title to land in open range areas very onerous. Yet they want the tax levies to be paid, usually, at a much higher rate than those taxes paid by the rancher.

Many more cases can be cited that speak in the same vein. In my humble opinion, Mr. and Mrs. Davis, along with all the others involved with this civil suit against them, should not worry about the claim, however, they should be angry for having to be put through the exercise of court proceedings.

Jack W. Herzberg:

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