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31 Land & Water L. Rev. 79 (1996)
Outlaws of the Past: A Western Perspective on Prescription and Adverse Possession

handle is hein.journals/lawlr31 and id is 89 raw text is: OUTLAWS OF THE PAST: A Western
Perspective on Prescription and Adverse
Possession
Years ago when the Cowboy roamed the West, land barons pur-
chased large tracts of land consisting of hundreds of thousands of acres.
In part, to prevent stagnation of the land and under-use of natural resourc-
es, American courts imported two English doctrines-prescription and ad-
verse possession.' The courts believed these two legal devices would
provide an incentive to landowners to work all portions of their holdings.2
Although these tools remain in effect today, the public policy sup-
porting their usage has long since gone the way of the cattle drive and the
chuckwagon.3 This comment endorses the legislative abolition of prescrip-
tion and adverse possession primarily because current public policy pre-
fers land and resource preservation versus exploitation.4 In the past half-
1. John G. Sprankling, An Environmental Critique of Adverse Possession, 79 CORNELL L.
REV. 816, 816 (1994) ([The American model of adverse possession is] dominated by a pro devel-
opment nineteenth century ideology that encourages and legitimates economic exploitation - and thus
environmental degradation - of wild lands) [hereinafter Sprankling].
2. Thomas J. Miceli & C.F. Sirmans, An Economic Theory of Adverse Possession, 15 INT'L
REV. L. & ECON. 161 (1995) (policy justification for adverse possession doctrine in the past was that
a penalty should inure to a landowner for using land inefficiently) [hereinafter Miceli & Sirmans];
Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73, 77 (1985) (adverse
possession viewed as a reward for use of land or useful labor on a property); Meyer v. Law, 287 So.
2d 37, 41 (Fla. 1973) (adverse possession stems from a time when an ever-increasing use of land was
encouraged); 3 AM. JUR. 2D Adverse Possession § 1 (1986) (citing Meyer). See also Jeffry M.
Netter, Philip L. Hersch, and William D. Manson, An Economic Analysis of Adverse Possession
Statutes, 6 INT'L REV. L. AND ECON. 217, 219 (1986) [hereinafter Netter] (adverse possession
rewards the use of land and punishes those who sit on their rights).
3. Sprankling, supra note 1, at 817 (adverse possession is a dusty obscure relic). Early Amer-
ican definitions of property focused on the use of land in defining the rights held by a landowner and
illustrate one prevailing attitude toward property: Property is the right to use and consume a thing
(Dominium estjus utendi er abutendi re); the right of property carries with it the right to make a
bad use of things. Bernard Schwartz, The Law In America, 164 (1974) [hereinafter Schwartz].
4. Sprankling, supra note 1, at 816-18. The concept of adverse possession is an ancient and,
perhaps, somewhat outdated one. It stems from a time when an ever-increasing use of land was to be,
and was, encouraged. Today, however, faced as we are, with problems of unchecked over-develop-
ment, depletion of precious natural resources, and pollution of our environment, the policy reasons
that once supported the idea of adverse possession may well be succumbing to new priorities.
Meyer, 287 So. 2d at 41. The importance of the web of public obligations, otherwise known as the
public trust, which accompanies land ownership in America must be recognized. However, the scope
and breadth of the public trust is subject to changes with the goals of society. Each landowner should
not be treated as a sovereign state, immune from regulations and obligations to the country and the
community. [Tihe property owner necessarily expects the uses of his property to be restricted, from
time to time, by various measures newly enacted by the State in legitimate exercise of its police pow-
ers. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2899 (1992).

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