On Losing Ownership

Walter: Even common law doctrines support you on the question of whether one loses ownership simply by being out of possession. A rather consistent “no” echoes through the cases on this. Whether one chooses to make a gift of an item, or abandon ownership (something we do every day in the name of disposing of “trash”), or sell one’s claim, or will it to another upon one’s death, the central issue is always: Did an owner clearly intend to part with his/her claim of ownership? Blackstone once defined a “contract” as an agreement by two or more persons to transfer claims of ownership. Even the doctrine of “adverse possession” rests on the legal fiction that a prior claimant — who allows another to occupy, control, etc., a parcel of land for such a significant period of time (and without permission), acting as a true owner would act — has either abandoned his claim of ownership, or that there was a prior grant of such a transfer, the document for which has since been lost. Your example of a thirty year possessory interest illustrates the point: Your claim of right rests upon the recognition that (Charles) owns the land and has given you permission to be there. Your possessory claim, in other words, depends upon your recognition of his ownership, thus, no “adversity” exists between the two of you.

The only exception to the principle that one loses ownership only if there is clear evidence of his intent to no longer be the owner (via gift, sale, abandonment, etc.) is found in the doctrine of eminent domain. While private parties are bound to respect the claims of owners, the state is not. This is what makes eminent domain nothing more than legalized theft.

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9:56 am on April 16, 2012