Property Rules Liability Rules and Adverse Possession
![handle is hein.journals/illlr79 and id is 1132 raw text is: Copyright 1985 by Northwestern University School of Law Printed in U.S.A.
Northwestern University Law Review Vol. 79, Nos. 5 & 6
PROPERTY RULES, LIABILITY RULES, AND
ADVERSE POSSESSION
Thomas W. Merrill*
INTRODUCTION
The law of adverse possession tends to be regarded as a quiet back-
water. Both judicial opinions and leading treatises treat the legal doc-
trine as settled. The theory underlying the doctrine, although routinely
discussed in the opening weeks of first-year property courses, is only
rarely aired in the law reviews any more. Indeed, the most frequently
cited articles on adverse possession date from the 1930s and earlier.1 Per-
haps most tellingly, adverse possession seems to have completely escaped
the attention of the modem law and economics movement-almost a
sure sign of obscurity in today's legal-academic world.2
Nevertheless, two recent events--one academic, the other judicial-
are sufficiently challenging to our conventional understanding of adverse
possession that they deserve comment. The academic event is the publi-
cation of a law review article by Professor Richard Helmholz of the Uni-
versity of Chicago concerning the state of mind that a possessor must
have before he can obtain title by adverse possession.3 Earlier treatments
of this subject tended to proceed normatively, asserting the correct
rule based on considerations of policy.4 Helmholz, however, is interested
* Associate Professor of Law, Northwestern University School of Law; B.A. Grinnell College
(1971); B.A., Oxford University (1973); J.D., University of Chicago (1974). The author would like
to thank Richard Helmholz, Victor Goldberg, and Carol Rose for reading and commenting on an
earlier draft.
1 Eg., Ballantine, Claim of Title in Adverse Possession, 28 YALE L.J. 219 (1918); Ballantine,
Title by Adverse Possession, 32 HARV. L. REv. 135 (1918) [hereinafter cited as Ballantine, Title];
Bordwell, Mistake and Adverse Possession, 7 IOWA L. BULL. 129 (1922); Sternberg, The Element of
Hostility in Adverse Possession, 6 TEMP. L.Q. 207 (1932); Taylor, Titles to Land by Adverse Posses-
sion, 20 IOWA L. REV. 551 (1935); Taylor, Actual Possession in Adverse Possession of Land, 25 IOWA
L. REV. 78 (1939); Walsh, Title By Adverse Possession, 16 N.Y.U. L.Q. REV. 532 and 17 N.Y.U.
L.Q. REV. 44 (1939).
2 There is a considerable economic literature on the evolution of private property rights, see,
e.g., Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REv. 347 (Papers & Proceedings
1967); Anderson & Hill, The Evolution of Property Rights. A Study of the American West, 18 J. LAW
& ECON. 163 (1975), but none that I am aware of on the operation of the legal doctrine of adverse
possession as it applies in the mature Anglo-American common law system. For instance, there are
no index entries to adverse possession or prescription in R. POSNER, ECONOMIC ANALYSiS OF LAW
(2d ed. 1977).
3 Helmholz, Adverse Possession and Subjective Intent, 61 WASH. U.L.Q. 331 (1983).
4 See, eg., the articles by Ballantine, Sternberg, and Walsh, supra note 1.
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Property Rules Liability Rules and Adverse Possession
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